valampuri-net.com

Category: featrue2

Good Governance a key challenge Sri Lanka has faced and spectacularly failed to deliver for most of its modern history. This challenge is not only about individuals, but systemic, spread across all spheres: socio-economic, political, judicial, cultural, arts and science. Most countries across the world have also suffered the scourge of corruption, some have succeeded in partially alleviating its pernicious influence; most like Sri Lanka have failed.

In December 2014, the presidential candidate Mr Maithripala Sirisena signed a Memorandum of Understanding (MOU)[1] with 49 political parties and civil society organisations. This MOU refers to four immediate tasks and additional measures that were to be initiated in the first hundred days since formation of the new government. The first measure to be initiated was:

“immediately prevent, through greater transparency and accountability, the present unprecedented large scale fraud, corruption, bribery and earning of commissions as well as the wastage of public funds; take action according to law to deal with abuses that have been committed.”

At an Anti-Corruption Summit held in London, President Sirisena assured the full commitment of the government of Sri Lanka in taking firm action against corruption. He also added that “corruption was a factor in promoting political and other forms of violence, as evidenced in Sri Lanka during the previous administration”, and that “it was the people, who acted democratically against corruption, by electing new leaders”.

Once in power, President Sirisena appointed a new Director General to the Commission on Bribery and Corruption. In the past, this commission hardly probed any bribery cases due to heavy political interference. Even under the new set up, institutional and political obstacles to effective legal action have been substantial. As evidenced by the President’s displeasure when the Commission brought ex-president’s sons, brothers, particularly the former defence secretary and top officials of the previous regime to court on corruption charges. The President declared[2] that he will have to take action, if the Bribery Commission and the two Police divisions investigating corruption were “working according to a political agenda“, and implied that these agencies were favouring the United National Party[3]. Following his allegations, the new Director General of the Commission on Bribery and Corruption tendered her resignation.

Given corruption is an international phenomenon it requires global solutions. Certain countries have financial institutions with systems designed to accept laundered black money. They are abetted by certain lawyers, accountants and their consulting companies that facilitate such corrupt transactions. It is well-known that firms of wealthy nations offer large bribes to institutions and powerful politicians in many developing countries. Information available on international financial flow indicates that “money is moving from poor to wealthy countries in ways that fundamentally undermine development”[4].

Background

Corruption and bribery undermines the rule of law, impedes development, and promotes bad governance. Therefore, in any economy the greatest threat to development is endemic corruption. Corruption-free government is believed necessary for the development of a country. Corruption is considered a major challenge to ending extreme poverty by 2030 and achieving the sustainable development goals. According to the World Bank Group, annually about $1 trillion is paid in bribes around the world. The total economic loss is estimated to be many times this.[5] In addition, empirical studies have consistently shown that the poor pay the highest percentage of their income in paying bribes. Every stolen rupee robs the poor of an equal opportunity in life (World Bank, 2016).

Corruption diverts resources towards the corrupt entities and individuals, both in the private and public sectors; and away from the critical services needed such as education, healthcare, drinking water etc. Notoriously crooked leaders continue to enjoy extravagance at the expense of those living in extreme poverty[6]. Transparency International (TI) indicates that five of the ten most corrupt countries also rank among the ten most violent countries in the world. Even in countries where there is no open conflict, the levels of inequality and poverty are extreme. Countries in Northern Europe are found to be the least corrupt. However, it does not mean they have no links to corruption elsewhere in the globe. Half of all OECD countries are found to violate their international obligations to crack down on corrupt activities of their companies abroad.[7]

For the purpose of our discussion here, the terms ‘bribery’ and ‘corruption’ are used interchangeably.

Corruption and Bribery

Corruption is generally defined as abuse of authority for personal and private gain[8]. Corruption includes both offering and taking bribes, civil servants dishonestly using their authority to influence decisions; fraud, blackmail, election bribery and illegal gambling (OTSI, 2010, 4)[9]. A bribe is “a sum of money, services etc. given or offered to somebody in return for some, often dishonest help”. A framework based on Corporate Strategic Responsibility (CSR)[10] provides an opportunity to not only curb corruption, but also benefit from managing the level of corruption. The degree of reporting on anti-corruption is a strong indicator of the quality and completeness of an entity’s efforts in addressing bribery and corruption.

According to TI, corruption can be classified as grand[11], petty[12] and political[13], ‘depending on the amounts of money lost and the sector where it occurs’. Corruption manifests itself in diverse forms, such as embezzlement through theft of public resources[14], extortion through threats and intimidations[15], promoting favouritism[16], and bribery[17] in the form of kickbacks, gratuities, pay-offs, grease money etc. Bribery is defined as “the act of promising, giving, receiving, or agreeing to receive money or some other item of value with the corrupt aim of influencing a public official in the discharge of his official duties. When money has been offered or promised in exchange for a corrupt act, the official involved need not actually accomplish that act for the offense of bribery to be complete.”[18]

The Anti-Corruption Summit held in London last May was intended to deal with major global corruption issues including secrecy in the movement of money around the financial system, fighting corruption in public contracting, health and sports.[19] Recognising the role of civil society and journalists in anti-corruption work, a commitment was made to see that governments provide them with greater protection. Despite forty countries signing up to general principles and a global declaration, with some countries making specific country commitments, many major economies did not make serious commitments like Brazil and China.

Corruption in Sri Lanka

TI has rated Sri Lanka very high in its Corruption Perception Index (CPI).[20] Successive Sri Lankan regimes including the current one, have demonstrated their disregard and/or purposeful sabotage of any effective established frameworks to fight corruption. The law enforcement mechanisms in Sri Lanka itself appear corrupt. Successive governments have come to power pledging during the elections to eradicate bribery and corruption; in spite of this, corruption has penetrated the public sector from top to bottom. Despite some media sources exposing corruption scandals at times, authorities have not even bothered to respond to the allegations. In Sri Lanka, for a citizen, resident or a visitor to get anything done, it is credibly alleged that some form of monetary inducement is essential. Nepotism and cronyism prevail in making appointments to government and state-owned institutions. Certain sources have also described the procedure for prosecution on corruption charges is mostly difficult.[21]

Corruption is endemic. Such instances include getting a child admitted to a school, for a person being investigated to be treated leniently, for getting an application processed at a reasonable time, for winning contracts, for taking part in or securing a win in certain sports, for saving life during the times of enforced disappearances, etc., the need to pay a ransom has become the common experience. For six decades, major political parties have been engaged in corrupt practices[22] and bribing voters during election times by distributing food parcels, dry rations and liquor, and more recently applications for jobs, housing and bank loans, cement bags, zinc and asbestos sheets, and sil redhi[23]. These political parties have vastly contributed to making these corrupt practices reach the Olympian heights it has now reached.

In 2014 and 2015 the situation in Sri Lanka was quite similar to the above. In 2012 the CPI for Sri Lanka was 40 out of 100, in 2014 it was 38[24], and in 2015 it was 37[25]. It ranked 91 among 177 in 2013, 85 among 175 in 2014, and 83 among 168 in 2015. Despite the marginal improvement shown during this period[26], the CPI of Sri Lanka for 2016 has worsened to 95 among 176 countries.[27]

According to recent reports there are some 750,000 court cases pending in the lower courts of the Sri Lankan judiciary. The regime or its judicial bureaucracy do not appear to be interested in taking measures to expedite these cases. Legal redress is also expensive. There are many cases of land disputes running close to half a century and suspects are held with no charges for many years under the Prevention of Terrorism Act. One can say that this is a corrupt system designed to make more money at the expense of the poor. Judicial corruption has also placed the regime in an uncomfortable situation internationally. At the UNHRC, the regime conceded that the people have lost trust and confidence in the justice system[28]. Thus the Sri Lankan regime had to agree to set up a judicial mechanism with international dimension to try serious crimes committed against humanity.

It is safe to say that corruption has become a way of life in Sri Lanka, not only at the level of politicians and bureaucrats, but also at the grassroots level. Therefore, the political will at the highest levels of government to rectify the issues has been almost non-existent. Whenever charges of corruption have been laid, more often than not the cases do not succeed. In this environment, blatant and grand scale corruption and financial crimes carried out with impunity under the previous regime, does not only continue, but has reached new heights[29] under the new dispensation[30].

Management of Corruption in Sri Lanka

If we cannot eliminate corruption given its deep entrenchment in the last six decades or so; we need to at least try and stop its exponential growth. At an individual level, there are people who at a high personal cost to themselves, do not engage in corruption. If as individuals offering and accepting bribes can be refused, and in work situations authority is not used to dishonestly influence decisions through fraud and blackmail, ultimately one could hold onto a good conscience of being ‘free of corruption’. This is an extremely difficult task given that certain professional organisations and individuals in the capitalist set up, assist those corrupt entities and individuals to hide without trace, their nefarious activities.

Bribery had been made a punishable offence in Sri Lanka under the Penal Code since 1883[31]. In 1954, the Bribery Act was enacted to contain bribery in Public Service. In 1958, the Act No.40 established the Bribery Commissioner’s Department under the Ministry of Justice, as the main body responsible for investigating corruption allegations brought to its attention and instituting proceedings. In 1994, the Act no.19 created the Commission to Investigate Allegations of Bribery or Corruption (CIABOC)[32]. It commenced its activities in December 1994, but it had no noticeable effect on the level of corruption. However, the CIABOC appears to have failed to conduct a credible and independent investigation into complaints made against it in the Supreme Court. The CIABOC was compelled to do so, when Supreme Court directed it to initiate an inquiry into one such complaint as expeditiously as possible[33].

Sri Lanka has ratified the UN Anti-Corruption Convention. It also signed the UN Convention against Transnational Organized Crime, but did not ratify it. Sri Lanka is also a signatory to the OECD-ADB Anti-Corruption Regional Plan. In February 2015, the government established the Financial Investigation Division (FCID) for investigating major financial crimes, frauds, unsolicited mega projects, major financial crimes against public property, money laundering, terrorist financing, illegal financial transactions, unlawful enrichments and offences on financial crimes against national security.

Despite, being generally considered to have adequate laws and regulations to combat corruption, the Country Report of the Bureau of Democracy, Human Rights and Labor[34] indicated that corruption exists in the executive and legislative branches of the government. When previous regimes used anti-terrorism legislation to gag debates on corruption, the governance system degenerated. Even those who were usually critical of such issues became extremely silent on the issue. Concerns were raised at the time about promoting police officers accused of bribery, corruption and fraud. Yet, when all police promotions were later revealed to had been carried out on the President’s advice everybody went silent. Overseas firms identified corruption as a constraint on foreign investment, though it was not considered a major threat to operating in the country, at least once a contract was won.

Social Bribes and Growth of Corruption

Effective anti-corruption measures such as right to information, whistle blower protection and witness protection are needed to be in place to control corruption. Recently enacted Right to Information Act remain to be tested in practice to ascertain whether it would ensure access to information to all stakeholders in a timely manner and in sufficient detail. Elimination of corruption in the public sector requires CIABOC to have adequate human and infrastructure resources, be more independent and empowered.

The causes and effects of corruption and the strategies to prevent it have been in the agenda of government policy makers for a very long time (Hoi and Lin, 2012)[35]. Historically governments have t been more powerful than business corporations, and could regulate the limits to the exploitation by corporations. However, it is a changed world now, where globalisation and corporatisation are predominant. Currently the neo-liberal urge for lower production costs to maximise profits drives the globalisation trend. So lower costs of labour, raw materials, logistics have become the prime driver. Consumerism heightened by artificially created demand underpins this neo-liberal trend. This process has swallowed up entire societies including most politicians. Those who could inject capital investments have become to govern all aspects of politics. Bribery and corruption have become one of the central tools in manipulating governments, its systems and politicians.

To elicit investment, national governments have to offer inducements to large transnational corporations such as guaranteed rates of return, viability gap financing[36], tax exemptions, free land for projects, publicly developed infrastructure and opportunities for capital gains and immunity from labour laws in Free Trade Zones (FTZ), or Special Economic Zones (SEZ). Abolition of long-term capital gains tax exempts them from paying taxes on gains they make from stock-market speculation. These demands from large transnational corporations are becoming increasingly aggressive, for instance, the demands for zero taxation in FTZs and SEZs and exemptions from paying corporate income tax for manufacturing as a whole.

Simultaneously, offering tax concessions and other perks make national governments lose their revenue. Thus, funds available for spending on public education, public health, healthcare including sanitation and rural infrastructure become less. The marginalised are increasingly compelled to seek private sources to fulfil their educational and healthcare needs. So, people start paying high prices for such services. National governments are compelled to turn to financial agencies, who are in turn funded by large transnational corporations. Those agencies start offering assistance packages conditional to carrying out structural reforms. Hence, national governments impose measures to further reduce welfare provisions and introduce a user pays system, which penalises the poor.

At the same time, business corporations and local regimes have become experts not only at manufacturing consent, but also in manipulating dissent. So, corrupt cronies donate generously to programs led by major political parties, and in turn the campaigns of such political parties receive huge ICT backing. Thus, civil society needs to become aware of this fact, and then they will be able to pre-empt efforts to derail the anti-corruption movement from within.

Conclusion

From the above discussion, it is clear that corruption is not simply a moral question – it is also political. It requires concerted attention of governments and business firms, particularly in the developed world. Successful anti-corruption efforts need to be led by the joint efforts of both private and public sectors and the public – including politicians, senior public officials, citizens, communities, and civil society organisations. For this to succeed, capable, transparent, and accountable institutions need to be developed at the national, regional and global level to build, design and implement anticorruption programs.

Corruption thrives because those who are corrupt intimidate and or deceive the general public by manipulating information. Both business corporations and governments extensively spin or frame information to manage perceptions. On many occasions, they have managed to convince the public not to question their bribery, corruption and unethical practices. Hence, educating ourselves to be vigilant is essential. When police officers ask for bribes to perform routine services, when tender boards unfairly and unethically determine the winners of government contracts, when public officials make awards favouring their friends or relatives, or when employees who are simply paid for signing on a register and hanging around idly, they must be exposed. It is an essential task for civic society.

This also requires a paradigm change in the orientation and mechanisms used for both growth and governance. This struggle needs to be directed not only against mega financial swindles like the Central Bank scam and other macro issues, but also against micro-level corruption that is all-pervasive in everyday life. This is an uphill task given the insidious way corruption has infected every layer of society and institutions both in the public and private sectors in Sri Lanka.

The working people of Sri Lanka, and civil society organisations need to undertake this responsibility. Given the circumstances, only they can gather the courage, commitment, strength and momentum to fight the aggressive policies of large business corporations. Working people have to counter corruption starting at micro level against specific corrupt and fraudulent practices at their own work places. Fighting corrupt onslaughts of capital needs to establish participative democracy at work places. Yet, this could happen only with a major qualitative social transformation. If processes are transparent and open, corrupt practices become exposed, which makes it easier to manage, control and finally eliminate it. Hence the broad people’s movement must become the backbone against corruption. The working people needs to become the most organised contingent to fight against the corrupt onslaught.

So, it becomes our responsibility to demand the confiscating of properties politicians and bureaucrats have corruptly acquired, and banning corporate lobbying. The working people needs to demand the establishment of effective anti-corruption legislation and a credible institutional mechanism to prosecute and punish the guilty. The people also needs to demand maintaining an open register of the entities that utilises black money in their business transactions using initiatives such as Double Taxation Avoidance Agreements with other states. The black money already stashed in foreign tax havens need to brought back for public investments. The black money hidden locally should be found and confiscated, and those involved in such scams including those in the bureaucracy and professional entities need to brought to justice.

To quote “Unmask the Corrupt[37]”:

Grand corruption is the abuse of high-level power that benefits the few at the expense of the many, and causes serious and widespread harm to individuals and society. It often goes unpunished. It concerns millions of victims around the world. It’s time the corrupt face the consequences for their crimes. Together we can make that happen!

[2] In addition, when the Criminal Investigation Department of the Police probed the allegations against military intelligence, several military intelligence officers were remanded regarding certain cases of disappearances and killings (including the 2010 abduction of journalist Prageeth Eknaligoda and the suspicious 2012 death of rugby player Wasim Thajudeen) that occurred during and after the final stages of the war. The Rajapaksa’s were critical of the regime for these arrests. The current President also weighed in and most of the suspects, Rajapaksas and army intelligence officials who had been in remand custody, were released from custody.

[6] For example, 70 percent of the Angolan population lives on USD 2 a day or less. One in six children dies before the age of five. More than 150,000 children die each year. However, Forbes consider that Angola’s President’s daughter, Isabel dos Santos is the richest woman not only in Angola, but also the whole of Africa.

[7] For example, Sweden is the third in the index; however, the Swedish-Finnish firm TeliaSonera is alleged to have paid millions of dollars in bribes to secure business in Uzbekistan, which comes in at 153rd in the index. At the same time, half of all OECD countries are found to violate their international obligations to crack down on bribery by their companies abroad.

[11] Acts ‘committed at a high level of government that distort policies or the central functioning of the state, enabling leaders to benefit at the expense of the public good’.

[12] ‘Everyday abuse of entrusted power by low- and mid-level public officials in their interactions with ordinary citizens, who often are trying to access basic goods or services in places like hospitals, schools, police departments and other agencies.’

[13] Manipulation of ‘policies, institutions and rules of procedure in the allocation of resources and financing by political decision makers, who abuse their position to sustain their power, status and wealth’.

[14] Such as state officials stealing from the public institutions where they are employed, or regime leaders stealing from the treasury. In Indonesia, when Suharto was in power, he allegedly embezzled up to $US35 billion from the country (Hodess, Robin, Tania Inowlocki, Diana Rodriguez, and Toby Wolfe, eds. 2004. Global corruption report. London: Pluto Press).

[15] When the rule of law is weak, this may be carried out by mafia groups blackmailing state officials, or certain state officials threatening to take sort of punitive action.

[16] Disposition to favour and promote the interest of one person or persons to the disregard of others having equal claims. Privatisation, exploitation of natural resources, regulations provide ample opportunities to play favourites and extract personal gains. Nepotism is another form of favouritism, for example, hiring and promotion of individuals based on family or other personal relations rather than merit. In the public sector, this may take the form of authority to hire or promote someone, thus the person abusing authority benefitting from it, although not necessarily in monetary terms (Admundsen, Inge. 2000. Corruption: Definitions and concepts. Chr. Michelsen Institute Working Paper).

[17] Individuals or organisations offering bribes to authorities who can make contracts on behalf of the state or make decisions on using public funds to influence their decisions regarding particular issues.

[21] On September 20, the government indicted former Deputy Defence Minister on charges of bribery. Allegations have been levelled against the current Secretary to the Ministry of Defence. At the time, there was no law that provides for public access and retrieval of relevant government information. However, in June 2016, the Parliament enacted the Right to Information (RTI) bill.

[32] The intent of the Act was “to provide for the establishment of a permanent commission to investigate allegations of bribery or corruption and to direct the institution of prosecutions for offences under the Bribery Act and the Declaration of Assets and Liabilities Law No.1 of 1975…“.

“Collective fear stimulates herd instinct, and tends to produce ferocity toward those who are not regarded as members of the herd.” ~Bertrand Russell

In pursuit of a solution to Sri Lanka’s nagging problem, the Tamil Question, most of our leaders chose to ignore the obvious and dug deep into the respective distorted histories of the two ethnic communities; they inhabited a comfort zone of historical superiorities, cultural dominances and vituperative politics of the times. They lacked empathy; they lacked understanding and they sadly lacked spine to tell their own supporters that there is another way but a difficult one, a more realistic one and a more honest one. When leadership fails, the whole campaign fails; when leadership slips, the supporting crews go astray and when leadership deliberately misleads, the followers swallow the sweeter pill and disregard the more unpalatable truth. On both sides, Sinhalese and Tamil are plastered with this ugly signature of chauvinism which is mistaken for patriotism.

Riots May 1958 – A Tamil passenger was taken out of the vehicle and beaten up

In a haze of inscrutably vicious landscape, Kadiresan in the North and Hearth in the arid, dry zone in the North Central province, till their land and harvest their crop, bathe in the fresh waters of the Mahaweli or off the Aandi well (AandiLinda), clothe their young children before they set off to school with the same intense, selfless love and hope. They have immense faith in their religion, whether, Hinduism or Buddhism. They, with all their superstitions and unbending loyalty to their clergy, hold human values as dear and all-enriching; their moral compass has been set at their childhood by their parents and elders, all-unifying and all-encompassing. When they have an issue with the deed of their land and property, they trek to the closest government office, Kachcheri or a divisional secretariat, they hope to transact their problems in their own language and if it had to be referred to a court of law, they need to understand the language in which the court is transacting their business. Among the fundamental demands of the Tamil population has been the language in which our courts conducted their cases. If the language is not understood by the litigants or the accused, as in the case of Silindu in Leonard Wolfe’s ‘Village in the Jungle’, an obvious denial of fundamental rights has taken place and the majority Sinhalese, the ethnic group from which our Herath and our successive political leadership hail, are, if not guilty of deliberate suppression of those rights of the Tamils, are guilty of gross negligence in applying the rule of law due to ignorance.

The crux of the Tamil Question is language and land. These two elements remain the center of gravity for each and every ethnic group, every race and every nation. ‘The Land the Race and the Faith’ (Rata, Deya, Samaya), according to Professor Jeyaratnam Wilson, the then lecturer at the University of Ceylon and later University of New Brunswick, who also happened to be the son-in-law of S J V Chelvanayakam, the leader of Illankai Tamil Arasu Kachchi (ITAK) commonly known as the Federal Party, was the proud badge of the majority Sinhalese Buddhists. It was so then and it is certainly so now. But where has it taken the majority? A majority living with a ‘minority’ mindset because every argument for and against a true reconciliation with a minority that is tormented by its own history, a minority that is cooped up in a world of celluloid heroes and fairytale-cocoons, a minority who has been more sinned against than sinning, yet has committed more killings in the name of a criminal leader such as Prabhakaran than in the name of their proud Tamil heritage are all what the current impasse this troublesome issue is confronted with.

From the early part of the Twentieth Century, the harassing questions the Tamil community had to face thrown at them by the Sinhala-dominated national leadership, despite the undeniable support they received from the leaders of the Tamil community in the likes of Sir Ponnambalam Ramanathan, still remain unchanged and unresolved. After hundreds of their militant cadres were sacrificed at the altar of Elam, the ‘Tamil Question’ is now being addressed in a totally different context. The context has shifted from one of Tamil militancy to ‘Tamil support’ for the election of a friendly Executive President and an empathetic Prime Minister and Foreign Minister.

In politics it’s context that matters. When the context changes, the resultant setting of circumstances begin to dictate the path each party to the issue takes. If and when the parties start seeing the changed circumstances and shifted paradigm, there might be a ray of hope. If, on the contrary, the parties revert back to the old failed formula of bickering one-upmanship, the wound only will get more grave and its stench more insufferable. Yet politics is all timing. The Tamil leaders must realize one major reality. Never in their wildest dreams would they have got a friendlier regime to deal with than the one they have got at present. Both President Maithripala Sirisena and Prime Minster Ranil Wickremesinghe owe them a load of gratitude for their being in power. The overwhelming Tamil vote was one of the three blocs of votes that helped Maithripala Sirisena’s election- the other two being the Muslim and 100% of the UNP vote. President Sirisena simply cannot look the other way when the legitimate issues and legitimate solutions are staring him in the face.

Then we have to face the other context- the ‘Rajapaksa phenomenon’. The lengths and breadths the Rajapaksas have attempted to drive the majority Sinhala-Buddhist community with the vocal as well as material support of the various Bala Kayas and Sènas- led by the notorious Galagoda Atte Gnanasara etc.- cannot be disregarded as ‘good-for-nothing’. Nor would an overwhelming majority of Sinhalese Buddhists forget the ‘war-victory’ against the brutal massacres of Sinhalese Buddhists by the Liberation Tigers of Tamil Elam (LLTE) and its leader Prabhakaran. The wages of war are very high and sometimes come back to hurt you at the most unexpected times. History has shown us that those who disregard the past events, their development through a tough and unfriendly terrain and the unambiguous triumphs those events have led to, have suffered irreversible defeat at the political front. Within that context of ‘war-victory’, the Rajapaksas still hold a great advantage and it is that advantage that they are using now to galvanize a people who have been taught and nurtured and nourished from their school days. We all have learned our national history; it abounds with stories of bravery, uniqueness and patriotism. The awe-inspiring saga of King Dutu Gamunu, subliminal tales of the advent of Buddhism during King Devanampiyatissa, monumental edifices of Kashyapa’s Sigiri, King Parakrama Bahu’s stupendous construction of massive tanks, King Dathusena’s Kala Wewa and Aukana Buddha Statue and Samadhi Buddha Statue, the magnificent rock statues of Gal Vihare, Isurumuniya lovers and other numerous accomplishments are not only used by power-hungry politicians of the level of the Rajapaksas, they have endured to inspire a nation for more than two thousand five hundred years.

When the Tamil leadership sits at the table opposite to their Sinhalese equivalents, that shimmering glorious history is also at the table as an invisible counterpart. The Rajapaksas are aware of it. Maithripala Sirisena and Ranil Wickremasinghe should be aware of it. Now can you see the context? It has changed and it will continue to haunt many generations of Tamils to come.

Pondering on the reality of a separate state for Tamils in Sri Lanka, Professor A J Wilson in the preface to ‘The Break-up of Sri Lanka’ writes thus: “At present this is a state of mind; for it to become a territorial reality is a question of time. Patchwork compromises, even if underwritten by New Delhi, are passing phenomena. The fact of the matter is that under various guises the Sinhalese elites have refused to share power with the principal ethnic minority, the Tamils. The transfer of power by Britain to the Sinhalese ethnic majority in 1948 brought in its wake an unfortunate train of events which can best be described as a loss of perspective on the part of the Sinhalese political elites. Their anxiety for power led to the abandonment of principle”. When Wilson wrote this, the context of the ‘Tamil Question’ was quite different. The militancy of a rising Tamil movement was getting stronger by the day; open alliance with the Tamilnadu government led by M G Ramachandran and covert assistance of the Indian Center led by Indira Gandhi contributed to an fictional reality of a separate state. The year 2009 changed all that and more.

Today when they sit opposite to each other, the two communities are not equal anymore; one is a defeated enemy, the other a representative of a triumphant community. Yet the Sri Lankan Constitution guarantees equality to all people, irrespective of caste, creed, color and religion, among others. The Sinhalese are facing equal men and women at a roundtable forum, but in an unequal context. The solution needs to be one of unmitigated fairness and justice. There are no heroes; there are no traitors; only men and women trying to live with each other.

This paper celebrates the 85 years of universal suffrage in Sri Lanka that came with the Donoughmore Constitution in 1931 with its inherent idea of equality of all persons. This constitution in turn led to the Soulbury Constitution of 1946 which entrenched equality of all citizens and through Article 29 prohibited Parliament from enacting laws that did not treat citizens equally.

However, with a view to reinforcing that highpoint in our achievements, this paper then focuses on how electoral politics has the weakness of candidates having to appeal to differences in identity to outbid others for votes and win. Thus our high achievements were rolled back in the 1972 republican constitution which did away with Article 29 and favoured Buddhism, making lesser citizens of those who are not Buddhists. This regressive change was not corrected in the 1978 constitution that followed and demeaned our democracy further with authoritarian elements. The best part of our colonial heritage was annulled by our own indigenous mismanagement.

As a new constitution is being drafted, these are matters to be thought about and learnt from to ensure that we return to our highpoint as a democratic nation.

The Legacy of Equality and Human Rights

The world is getting to be a better place. As Time put it, Human rights is the legacy of the twentieth century. Our stronger democratic institutions and our human rights legacy strengthen each other.

This march towards an increasingly better democracy came to us in Sri Lanka with the Donoughmore constitution which for the first time gave us Sri Lankans “one-man, one vote.” Whether man or woman, whether Sinhalese, Tamil or Muslim, whether Buddhist, Hindu or Muslim or something else, whether high caste or not, whether we liked a member of a group or not, one was entitled to one (and only one) vote. Intrinsic to this was the revolutionary idea in our feudal society that we are all equal. We had universal adult franchise to choose our representatives and take us into a modern egalitarian society.

The Commissioners were Lord Donoughmore an Irish Peer (Chairman), and Dr. Drummond-Shiels and Frances Butler, both MPs. Donoughmore is said to have been a champion for women’s right to university education. Sir Matthew Nathan served during 1927-1928.

Roll-back on Equality

Universal suffrage and one-man one vote put Sri Lanka on the threshold of the new equality between persons making us very proud. Naturally the 1946 Soulbury Constitution that readied us for independence reinforced the idea of equality of all person through Article 29 which limited the legislative powers of Parliament. Article 29 is reproduced here drawing particular attention to 29(2):

(1) Subject to the provisions of this Order, Parliament shall have power to make laws for the peace, order and good government of the Island.

(2) No such law shall –

(a) prohibit or restrict the free exercise of any religion; or

(b) make persons of any community or religion liable to disabilities or restrictions to which persons of other communities or religions are not made liable; or

(c) confer on persons of any community or religion any privilege or advantage which is not conferred on persons of other communities or religions, or

(d) alter the constitution of any religious body except with the consent of the governing authority of that body, so, however, that in any case where a religious body is incorporated by law, no such alteration shall be made except at the request of the governing authority of that body:

That is, no law could confer an advantage or impose a disadvantage unless it was done to all communities. In addition to this guarantee was the right to appeal to the Privy Council.

This faith in appeal to the Privy Council in London was reinforced when the Privy Council ruled in “Bribery Commissioner Versus Ranasinghe that Article 29(2) cannot be amended even with a two-thirds majority” and that Section 29(2) represents “the solemn balance of rights between the citizens of Ceylon, the fundamental condition on which inter se they accepted the constitution and these are therefore unalterable…” (http://swarb.co.uk/the-bribery-commissioner-v-ranasinghe-pc-5-may-1964/).

However, in 1962, when S. Kodeswaran, a government employee adversely affected by the Official Language Act of 1956, challenged the government claiming that in passing that Act, it had violated Section 29 of the constitution, Judge (later Justice) O.L. de Krester agreed. The Government took up the matter at the Supreme Court which, without considering the substantive constitutional issue, ruled that the Government could not be sued. Kodeswaran appealed to the Privy Council which found with him and directed the Supreme Court to rule on the constitutional question (72 New Law Reports, p.337). That never happened because the Supreme Court was hesitant to rule on the constitutionality of the Official Language Act and Mrs. Bandaranaike, immediately upon coming to power in 1970, passed Act No. 44 of 1971 which abolished appeals to the Privy Council.

Minorities have always viewed foreign judges at the Privy Council as relatively fair and neutral arbiters while the Sinhalese majority saw them as a colonial intrusion into their sovereignty. That same argument is being played out again today in the War Crimes issue.

It must however be kept in mind that the right to appeal to a tribunal outside the jurisdiction of the state, enhances the rights of an individual and is a salutary check on judicial processes at home. But all human institutions are fallible and no limitation need be placed on the right to appeal. It is well to remember that the 1953 Privy Council ruling which supported the Government, and the Supreme Court’s ruling, on the denial of the franchise to labour of Indian origin, remains a matter of deep controversy. The Citizenship Act marked the dethroning of the Donoughmore ethos. Apparently, administrative actions could not be questioned under Article 29. Nonetheless, the meager protection that the article afforded to minorities was removed.

In 1972, the new Republican Constitution drafted by Colvin R. de Silva, failed to incorporate even this weak Section 29. Worse, Article 9 of the new Constitution (which required removing the old constitution’s Article 29) stated:

The Republic of Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster the Buddha Sasana, while assuring to all religions the rights granted by Articles 10 and 14(1)(e).

No longer is everyone equal. If one is Buddhist, ones religion will be protected and fostered by the state, but not if one is not a Buddhist. The equality between people conferred by the Donoughmore constitution’s concept of one-man, one-vote and explicit in Article 29 of the Soulbury Constitution, had been rolled back.

As a new Constitution is being discussed in 2016, the ruling coalition at the Seventieth Anniversary UNP Rally on 10 Sept. 2016 announced that this pernicious clause will be retained. These are sad times for all of us wanting a secular Sri Lanka.

Identity Politics and Caste: Spoilers in the Egalitarian Order

How did we mess up our system of governance? It was through identity politics that emphasizes differences among people. Doing away with Article 29 and making Buddhism effectively the state religion were means by which politicians tried to outbid each other for votes by offering advantages to one community over others.

Even as we celebrate 85 years of the new Donoughmore era and the egalitarian ethos that it ushered in through the publication of this volume, we have just noted a flaw in our system of constitutional governance without the protection of Article 29 of the Soulbury Constitution and in the special status and protection afforded to Buddhism in the two republican constitutions that followed in 1972 and 1978. In our enthusiasm to celebrate our democratic heritage, in our pride in our making history as one of the first nations to have universal adult franchise, we have a reluctance to recognize the problems that came with the Donoughmore Constitution. We are blind to our weaknesses while outside observers will quickly see through the fictional self-serving arguments about sovereignty to keep out the Privy Council and foster Buddhism.

Democracy and its corollary of universal adult suffrage exacerbated what A.R. Mohammed Imtiyaz and Hoole (2011) call identity politics and the use of ethnic symbols in politics to prey on the candidates’ and voters’ identity to reap exploitative advantages from their communal identity. Giving Buddhism foremost position and protection is a result of this identity politics. Few (other than Sri Lankan Buddhists) would buy the argument that the foremost position given to Buddhism does not create two classes of citizens. This is why having outside points of reference (such as the Privy Council – too late for that now – and the UNHRC, the International Criminal Court under the Rome Statute, the International Court of Justice in the Hague, etc.) will always be salubrious to us as a nation and make for true nation-building.

What then is this identity politics? According to North, Shaw, Grossmann and Lipsitz (2015), five factors influence how voters vote:

1) Social identity. Social identity – the class background, ethnicity, and/or religion of the voter – affects who voters tend to choose in an election. Parties tend to cater to social groups in order to garner loyalty, and during a campaign are likely to “remind” any aligned social groups that they are the best choice through ads and their basic messages.

2) Voters’party identification. Party identification or voters’ psychological attachment to a political party – not just affiliation with a particular political ideology or opinion. Usually, citizens tend to learn party affiliation early in life, from family or social ties, as well as the political context during which a citizen grows up.

3) The national economy. The state of the national economy is seen as a reflection of incumbent performance, and voters respond accordingly—rewarding incumbents when the country prospers, and punishing either the incumbents or their political party when it is not.

4) Policy issues. Although these are one of the five factors, policy issues are not as important as the aforementioned three factors, but certain voters will also make choices based on specific policy choices. Candidates accordingly try and adjust their positions on these issues to ones which they believe will gain them the most votes. In most cases, however, issue voters still tend to vote on party lines if they are also affiliated with a party, so policy issues are still of secondary importance.

5) Candidate Traits: There is conflicting evidence as to whether candidate traits affect voter choice in elections. In general, most campaigns function with the assumption that voters tend to take both physical attributes and personality into consideration when making their decision on whom they vote for in an election. Appearance and personality, however, will only typically matter significantly when party affiliation has already been accounted for, and in smaller elections when other information is not as readily available and distributed.

Thus we see that a focus on policy during an election campaign is not as rewarding in winning as would drawing attention to the social background of a candidate be. While party loyalty is the second-most important factor, voter choice based on party is usually already predetermined in a campaign and there is nothing much to be gained by appealing to party loyalty.

Therefore election campaigns tend to draw attention to a candidate’s social background. An example would be the debate over who should be the next Prime Minister of Sri Lanka when the United People’s Freedom Alliance won a majority at the elections on 2 April 2004. Lakshman Kadirgamar, the very successful Foreign Minister in an earlier government, was widely talked about, but, going by newspaper debates of the time, his ethnicity worked against him and Mahinda Rajapakse was appointed. Where it is not acceptable to attack a person on his ethnicity directly, it is done by proxies. An example is Mark Burns, who has been described by CNN (1 Sept. 2016) as Donald Trump’s most prominent black surrogate. Burns had tweeted a message depicting Trump’s rival Hilary Clinton in a black face and speaking in dialect. The message seemed to be that her appeal came from Blacks and therefore White voters should think carefully before voting for her.

As a result of policy issues being much lower than identity in importance when it comes to voter choice, Sri Lankan Tamil politics has tended to focus on identity issues – Tamil Versus Sinhalese issues – like the government blanketing the North-East with the army, detention of Tamils without charge under the PTA, refugee resettlement and lands occupied by the army. Taking these up is indeed very right. However, what is wrong is the neglect of bread and butter issues like the Northern Province having the lowest performance in examinations and the highest consumption of liquor; and the Districts of Vavuniya, Mullaitivu, Kilinochchi and Mannar being denuded of people and having the lowest population density. President Sirisena has noted that “There are three districts which pay very high amounts of taxes on liquor. Jaffna is the first. Nuwara Elya comes second while Batticaloa ranks the third.” He added that the people of Nuwara Eliya spend Rs. 16 Billion per year on liquor and tobacco (The Island, 26 June, 2016). It should be of high interest and concern to Tamil representatives but no one seems to care. Ignoring this, however, makes good electoral sense!

In trying to outbid each other for votes, the TNA and its opponents in the TMP (Thamil Makkal Peravai) spend so much energy that they do not have time for the less rewarding exercise of talking of these bread and butter issues. They talk mainly about identity issues which make a real difference in voter choice. To cite two examples, in the examination for the intake of nurses, Mullaitivu, Mannar, Kilinochchi and Vavuniya performed abysmally with under 10 persons qualifying from some of these districts while many Sinhalese districts had hundreds qualifying from each. Secondly, when the Election Commission conducted a test to select staff, Tamils performed very badly, especially from Mullaitivu. Interestingly in the two-part test on IQ and language skills, the IQ part had Tamil students getting 80, 90 and so on, but in the Tamil language part the same students obtained 15, 20 and so on. This surely is not a plot by the Sinhalese to put down Tamils. When Tamils are the examiners, it may be safely said that there is something seriously wrong in the way we teach the Tamil language.

But who cares, under identity politics? Not the TNA which has been overwhelmingly chosen by the Tamil voters as their representatives; extrapolating from the second most important of the five reasons why voters vote for a candidate as given by North et al. (2015), presumably out of blind loyalty to the House symbol. Not the TMP which wants to replace the TNA as the representatives of the Tamils. Neither is interested because speaking on identity issues is more effective in getting support.

Thus, the Donoughmore constitution brought to us not only equality and the right to representative government, but our mismanagement of our beautiful heritage has also brought to us the many communal ills that have plagued us since, through bidding for votes by raising and playing up identity issues.

The most profitable and effective campaign message for a candidate, therefore, will draw attention to the fact that that the candidate has the same background as the voter. Similarly, the most effective campaign message against a candidate would draw attention to that candidate’s social background being contrary to that of the voter. This is the identity politics spawned by the Donoughmore era.

As elections and election campaigns came to centre stage in our lives determining the direction of our nation, we see many Christian politicians converting to Buddhism to identify with the majority of Sri Lankan voters. This brought to us Sri Lankans the phrase Donoughmore Buddhists to designate Christians who became Buddhists to play identity politics and thereby attract votes.

Accordingly, we see J.R. Jayewardene, the Anglican choirboy at St. Michael’s Church, Polwatte (in Colpetty), being among the earliest to play the Buddhist card openly (Rajan Hoole, 2001). Campaigning in the 1940s against his opponent E.W. Perera for the Kelaniya seat, Jayewardene asked,

As much as I hold E.W. Perera in great esteem, how can this hallowed city of Kelaniya be represented by a Christian?

Both Jayawardene and Perera were Anglican Govigamas[1] but Jayawardene had switched to Buddhism and this scored points over Perera.

Caste and Caste as Practised in Sri Lanka

Caste is as old as Hinduism’s most ancient texts. Although Buddhists also practise caste, we will draw from Hindu-Tamil sources because Hinduism gives us the real ideological and theological basis and justification for caste. In the Purusha story (Rig Veda, Book 10, Hymn XC) the origin of the four caste groups from Purusha, the Cosmic Man (Maha-atman and Brahman) from Proto-Indo-European religion, is mentioned:

From His face (or the mouth) came the Brahmanas (Priests). From His two arms came the Kshatriyas (Warriors). From His two thighs came the Vaishyas (Traders). From His two feet came the Sudras (Labourers).

The much venerated and oft-quoted text, the Gita, has god Krishna telling us that he created these four caste groups according to our qualities and activities (van Buitenan, 1981). So persons of the lower castes are also created with unclean habits and bad morals. The lower caste are therefore ritually polluting and are invariably associated with human and animal bodily excretions including hair and dirty clothes.

However, caste is peculiar in Sri Lanka. The four-fold Varna Caste System is the foundation of caste everywhere but we in Sri Lanka have only the bottom stratum of Sudras. We are all by definition, really low caste Sudras but in denial. When some of us call ourselves high caste, we really mean we are at the top-end of the many subcastes that make up the low caste Sudra group.

Under Hindu law Sri Lanka is an island where the lowest caste Sudras dominate because so called good caste people were prohibited from crossing the ocean (Rawlinson, 1975) and therefore from coming to Sri Lanka. As a result early last century it was found that not many Indians sympathised with the struggles of fellow Indians in South Africa because “many Hindus have no sympathy with the man who sacrifices his caste by crossing the kala pani (black water) and settling in the land of the Mlechchas” (Archer, 1918).

Since those above Sudras could not come to Sri Lanka while maintaining their purity, the Vellalas in Sri Lanka will argue that the four-fold Varna system does not apply to us. This is the means of arguing that we are not low. So Sri Lanka, except for about 2000 Brahmins who are here to service temples, besides outcastes and statistically insignificant members of the other two top three castes, has only Sudras – the lowest group of whom the agricultural castes (Govigama among the Sinhalese and Vellalas among Tamils) are at the peak. To date no major Sri Lankan party has willingly nominated a non-farmer as its prime ministerial or presidential candidate. (The exception is the early 1990s when death threats and rigging were widespread in a time of insurrection and an outcaste became President). This is because everyone knows (but will not admit) that it is difficult for a non-Govigama to contest and win.

Broadly speaking, writing from the Tamil-Hindu situation which underpins all caste structures in Sri Lanka, among these low-caste Vellala Sudras are Upper Stratum Vellalas (Uyarthara Vellalas) who are farmers and Second Class Vellalas (Irandaamthara Vellalas) like Kovias (household servants) and Nattuvar (musicians). Among the lowest stratum of Sudras are the polluting Panchamar – Paraiyar (sanitation workers), Pallar (agricultural labourers), Nalavar (toddy-tappers), Ambatter (barbers) and Vannaar (washermen). The fishing caste Karaiyas (sea-shore dwellers) are in an odd position. The Vellalas do not accept them because they trade in the killing of fish; but as fishermen they have a livelihood independent of Vellalas and stand next to Vellalas at public functions. The Sinhalese do not accept them (called Karawas in Sinhalese) as Govigama, as judged by candidatures at elections denied to them.

The Vellalas dominate intellectual life. They control what is taught in school texts. That dominance is complete. For example, Avvaiyaar the poetess has taught that only those who till the ground and live are those who truly live. This is taken to refer to farmers but the reality is that it is the Pallar who really till the ground and live. The Vellalas simply hire the Pallar and sit back. Because Vellalas teach and write books in Sri Lanka, their version is swallowed whole by everyone without a second thought and even Panchamar children repeat Avvaiyaar in classrooms in the rote system of teaching practised. The Vellala dominance of Tamil society is complete. To show that the Vellala establishment can make black into white and have everyone believe it, we will take up some examples to show what those not in that establishment face.

The grade Six Tamil language text says that Rao Bahadur C.W. Thamotharampillai, an ancestor of this writer’s, was born a Hindu and pretended to be a Christian for benefits whereas the reality is that according to America Ceylon Mission records (ACM, 1839) he was born on 30 Aug. 1832 to a Tamil Assistant Priest Cyrus Kingsbury and his wife Mary Dayton (Vayiravi and Periyai before their own baptism)[2] and baptized as an infant on 24 Feb. 1833. Since the Vellala Hindu establishment has usurped Thamotharampillai their own, they want to elevate him further. Today short names like Thamotharampillai’s parents’ prior to their baptism, indicate low caste status but not in the old days. So the Isurupaya textbooks have changed these names to Wairavanathar and Perunthevi! This is what school children are taught. The dates and names cited are from books in this author’s possession (ACM, 1839) and this information has been published but that has not stopped the Vellala writers at Isurupaya from cooking up these stories for our school children.

Other school texts say that the unlettered Arumuga Navalar (who knew neither Hebrew nor Greek) translated the Bible into Tamil whereas the Bible had already been translated into Tamil in India and The Rev. Peter Percival and a team of missionaries working with several native assistants merely revised that translation to come up with the Jaffna Version of the Tamil Bible which on the cover page says it was translated from the original languages (JABS, 1868). To boot, Navalar who was Percival’s Man-Friday, quarreled bitterly and split with Percival taking away over half the students at Jaffna Central College when Percival admitted Gabriel Jerony, a 15 year old boy of the Nalavar caste (The Morning Star, 25.11.1847) and was sacked according to Zvelebil (1997).[3] In his hatred for Sudras below him, he derided those who took coffee at the missionary’s house (because the cook there was a Paraiya) – Navalar’s taunt was for “drinking the Kusinip Paraiyan’s Koepi.” Yet he is foisted on us as a national hero without whom there would be no Tamil Bible. This is how Vellalas control Tamil intellectual life.

Similarly Ponnambalam Ramanathan is sustained as another national hero despite fighting hard for the denial of schooling and the franchise for lower castes; indeed his sympathetic biographer Vythilingam (1971) states that Ramanathan and his brother Coomaraswamy were “removed” [read sacked] from Presidency College because of “youthful excesses” and spending time on body-building rather than studies. This writer’s family sources tell of Rao Bahadur C.W. Thamotharampillai’s embarrassment as their guardian in Madras over dismissal for examinations offences. His is education thereafter was as an apprentice to become a lawyer. There is also evidence that the governor favored appointing Ramanathan to Britto despite the great public support that Britto had, because the Ponnambalam family had bought its way into power improperly lending money to British Governors and Colonial Secretaries (for which they were sent back to the UK in punishment (Jayawardena, 2002, p. 219). While his Tamil wife was alive, he had begun going by train in private compartments with his White companion whom he married after his wife mysteriously fell in their well and perished.

On the other hand, while a fraudster and examination cheat who held back the education of the lower-castes is made a national hero, Joel Paul, a real hero, no one has heard of because of Vellala power in making history. Paul was a depressed caste school teacher who did not get to practice his profession, according to his daughter Dr. Daisy Paul Dharmaraj. He took to work as a building contractor (winning the Jaffna Town Hall contract among his many successes), became very wealthy and worked for universal suffrage encompassing the low caste. He founded the organization, Sangam for Workers Suffering Social Disabilities (Nalinthore Ooliar Sangam) in 1917. Having no confidence in the Jaffna Tamil establishment, they appealed not to Tamils but to the British and Lord Donoughmore, and the Sinhalese. This was a fatal mistake that identified him, together with Mr. M.C. Subramaniam (nominated MP in the 1970- parliament) as traitors in the dominant Tamil Vellala mindset. This label of traitor (thurohi) is freely stated in many conversations and newspaper articles (Jeyaraj, 2015)

Panchamar: Dispossessed

Seeniar Gunasingam (formally Gunanayaham), President of the All Ceylon Tamil Minorities Sabai in an interview for this article says the Farmer-Vellala control of institutions and histories is complete. He says he arranged with the current President Maithripala Sirisena when he was Minister of Health in 2010 to have a Jaffna hospital administrative committee with many Panchamar including a Nalavar-caste Vice Chairman; and as soon as the Minister looked the other way, they were replaced in a short while by Vellalas. He points to 200 cemeteries in Jaffna where his people have encroached and live in unhygienic conditions and are facing eviction issues from Vellala officials; whereas the Punnalaikattuwan Villoondi Maayaanam (Cemetery) which till recently had 40 lachams of land, has been encroached upon by Vellalas and reduced to 8 lachams with the collaboration of Vellala government officials.

Gunasingam is viewed as a traitor by the Tamil establishment because, like Joel Paul, he works with southern officials and political parties rather than Tamil leaders in whom he has no faith. People like Gunasingam have much to offer society. For example, the Vellala girl Velayuthapiilai Rajini was raped and murdered on 30.09.1996. The suspects were 4 soldiers and 2 policemen at a checkpoint near Gunasingam’s home in Urumpirai. Gunasingam was the only eyewitness. But at the trial in the Colombo High Court, he was threatened with death if he testified. He went into hiding. It was during the ceasefire in 2003 that he testified, having been brought to Colombo under detention. Convictions with sentences of life imprisonment were obtained for three soldiers with Gunasingam as principal witness and corroborated by the two policemen and the fourth soldier who turned state witnesses (Thinakkural, 8 and 10 May 2007).

Seeniar described for this article the lot of a Pallar Jaffna hospital doctor who skipped his convocation. His biochemistry professor, having discovered his caste, asked him what his parents did for a living. He had truthfully answered “growing grapes.” The professor in turn responded in pretended innocence, “But I thought you were in the arrack brewing business.” The doctor did not want to be at that convocation with that professor playing a key role.

The lower castes, despite having much to offer, live in the shadows of Tamil society.

Caste: The Basis of Identity

As Rajan Hoole (2001) points out, In South Asia in general the principal mark of identity is caste. Right before our eyes, Tamils become Sinhalese (especially along the Sinhalese area coastlines) and Sinhalese became Tamils some years ago, although there is no incentive now for anyone to do so. Christians become Hindus and Buddhists. But Caste stays immutable. Language and religion are transmutable. Thus, in the words of Rajan Hoole (2001),

when the Kandyan kingdom in the 18th century was in need of a Kshatriya prince to fill the throne, a Hindu Tamil-speaking Nayakkar from South India was made king and the protector of Buddhism.

He was fully accepted; his line’s later unpopularity was due not to their being Tamil but to their cruelty as Kings. Their royal (Kshatriya) caste is what made them meet requirements. It did not matter that they were both Hindu and Tamil. Their religion and language were matters of little consequence. What mattered was their royal-caste pedigree that entitled them to rule.

We thus have the birth of identity politics in Sri Lanka. Rajan Hoole (2001) writes further,

The introduction of universal adult franchise with the Donoughmore reforms of 1931 found several members of the Sinhalese ruling class changing their religious allegiance from Christianity to Buddhism.

The derisive term, “Donoughmore Buddhist” shows the effect of the Donoughmore Constitution in bringing us to the era of identity politics, identity being based not on religion or language, but on caste. Among the Donoughmore Buddhists were Bandaranaike and Jayewardene who had been Anglicans as already noted. Their religion had transmuted, but their caste remained immutable – in their case, Govigama.

Among Tamils too, many changed their western surnames. But that change cannot be so easily tied up to democratic politics or the Donoughmore Constitution. The main reversion to Hinduism came with the freedom of religion that the British ushered into our lives through the East India Company Act 1813, also known as the Charter Act of 1813. This opened the door to Christian missionary activity which had been prohibited by the East India Company thinking that conversions are inimical to their trade. The large scale conversion to Christianity under the Dutch had been because of rules that precluded employment under the Dutch unless one was Christian and recognition only of those marriages solemnized in the Dutch Reformed Church. This meant that the right of inheritance of parental property could be exercised only when the marriage of ones parents was in Church. With the arrival of the British and especially the Act of 1813 those who had converted for privileges and were not sincere in their Christian faith, reverted to their ancestral religions.

The most notable pre-Donoughmore reversions to Hinduism were by those of the Ramanathan family and Arumuga Navalar[4]. It is recorded in the biography of Sir Ponnambalam Ramanathan (Vythilingam, Vol. 1, 1971) that Ramanathan’s mother’s, mother’s, father, Vairavanatha Mudaliyar, was the Governor of the Vanni District under the Dutch. Combine this with the fact that the Dutch made, “assent to the Helvetic confession of faith necessary to the holding of any office of profit or trust under the government” (Howland, 1865; p. 7).[5] To have held such high office, besides baptism into the Christian faith by this Vanni Governor Vairavanatha Mudaliyar, a European bloodstream in his and his descendants’ veins is most likely although caste consciousness would lead to a stout denial of that possibility by family members. Similarly, Arumuga Navalar’s father served as an Aratchi under the Dutch as noted by Sivathamby (1979).

As for post-Donoughmore conversions to Hinduism by Christian politicians, there were few unlike among the Sinhalese to Buddhism, although dropping western names has been common without changing religion. The most notable of the latter was that of Mr. Naganathan Hensman, the Secretary of the Federal Party who, dropping the illustrious surname Hensman, became E.M.V. Naganathan of royal descent from Changili-thoppu. He was the direct descendant of The Rev. John Hensman who was the first Tamil from Jaffna to be ordained an Anglican Minister in 1865 at St. James’ Church Nallur which in its early form, according to Rev. Fr. Jeyaceelan of the Jaffna Diocese of the Roman Catholic Church, was built as a chapel dedicated to the Virgin Mary by the newly converted Queen of King Changili on the site of the royal temple of Jaffna which had been razed by the Portuguese.[6]

The late Kumar Ponnabalam and his son Gajendrakumar Ponnambalam are rare Hindu politicians from the Christian line of Cloughs who may be called Donoughmore Hindus. Many western names carried by Tamils, besides Clough, such as Porter, Volk, Stetson, Adams, Champlain etc. have disappeared; some like Hemphil and Kingsbury because of the end of the male line rather than to reversion to Hinduism. However, unlike among the Sinhalese, rarely have Donoughmore Hindus retained their western-Christian names. There are some rare exceptions, however, such as the Brodies and Joshuas who reverted to Hinduism without giving up their baptismal western surnames. Among Sinhalese, the practice of retaining their baptismal western names adopted at conversion to Christianity (like Silva, de Silva, De Silva, Zilva, Fernando, Fonseka, Soysa, Mendis, Pedris, Perera, Pereira, Peiris, etc.) even after reversion to Buddhism is probably because these names had merged with their immutable caste identity and changing would separate them from their family and that identity.

Living a Lie

All of us Sri Lankans live a lie as far as caste is concerned. Thriving in our democratic environment, we dare not let on that we really are casteists. Thus while we practise caste to different degrees, the fact is that we are all very inveterately rooted in caste. Even the most liberal of us will not like his child marrying lower down in the caste structure because it is to invite social disabilities for the grandchildren and even the entire family. So it is rarely that we see glimpses of caste observation in the public sphere because by admitting to our caste prejudices and practices we take off our mask of modernity to let others see our real primitive make-up. Accordingly, we construct a pretended, lily-white, caste-free world where we vigorously deny that we observe caste even as we observe all tenets of the pernicious system – often saying as part of this pretence, “my best friend is low-caste.”[7]

On the Tamil side, many of us pretending not to have caste prejudices would put down the EPRLF (Eelam People’s Liberation Front) saying EPRLF stands for Eelaththu Pallar Liberation Front. It was a broad put-down by Federal Party supporters claiming that all EPRLF supporters are of the Pallar (farm worker) caste.[8]

On the Sinhalese side we see the publicly cosmopolitan, sophisticated Trinitian with a Cambridge degree and Kandyan pedigree, Gamini Dissanayake – the son of, note the first name, Andrew Dissanayake, a new MP and Deputy Minister under S.W.R.D. Bandaranaike in 1956 – admitting to his prejudices in a private conversation to a visitor from England in 1983:

Earlier, in dealing with the Left, one could have talked to a good Govigama like Dr. N.M. Perera or to a good Dutch Burgher like Pieter Keuneman. But now, the leadership of the Left has gone to the scum! (Rajan Hoole, 2001)

By then, the remaining left leaders of prominence were Colvin R. de Silva and Bernard Soysa. Similarly when this writer was appointed Vice Chancellor of University of Jaffna the appointment of a Christian was anathema to many Hindus and even the modern training of the editors of a western, UK/Canada-based English-language newspaper called Oru Paper and strictly enforced hate crime laws in the UK, could not help them suppress their darker side when they wrote in their editorial:

“[T]here are a few Christians who are unable to reconcile their minds to the fact that they haddeserted the religion of their forefathers. This grievance they carry against the whole community. The Hoole brothers, Lakshman Kadirgamar [Sri Lanka’s Foreign Minister murdered by the LTTE] and D.B.S. Jeyaraj of Canada [a well-respected journalist] belong to this category. As for Ratnajeevan Hoole as Vice-Chancellor of Jaffna University, this much has to be said. He should not be allowed to roam free in Jaffna’s Tamil Hindu society, particularly in the university campus where there is even a Saiva temple.” [Emphasis as in the original] (Oru Paper, Issue 44, April 7, 2006, London]

Although the ostensible objection against this writer and E.W. Perera is explicitly to their religion, the real reason is caste based on their religious ideas of pollution because it is widely taught and believed that the bodies of those who are Christians and Mohammadans, by their very composition release “bad smelling particles” that are polluting (Griffith, Griffith and Tice, 1892). It is not clear however whether Jayawardene’s reversion to Buddhism would have stopped his body from releasing bad smelling particles. In this writer’s case too, since all Tamils in Jaffna were Christian in the Dutch period – see figures by K.M. de Silva (1981) – the objection, it would seem, was to someone who remained Christian and whose body presumably emitted bad polluting particles and would pollute University of Jaffna and its temple. Concern for pollution by the presence of Christians on the university campus is explicitly admitted in the Oru Paper editorial quoted above.

That caste and pollution are the dominant themes in our lives is also clear when evidence was recorded before the Hindu Temporalities Commission in 1951. As the low-caste elder (Mupanar) stated before the Commission:

The [Karaiyahs] are very brave, but as fishers they are still ‘killers’ and are not entitled to high status! (Perinbanayagam, 1982)

Even the untouchables claimed that since they are ‘clean’, and mainly ‘vegetarian’ they should be allowed inside the temples, whereas the Vannar (washermen) and Karayar (fishermen) should not be because they respectively, wash unclean clothes and kill. Posed the spokesman for the untouchables poignantly to the Commission:

Where is the logic of the Agamas in allowing Dhobies [washermen] and fishermen to enter temples and keeping us out?

That religion is far less relevant by the side of the ethnic identity is also seen in the 1983 riots where Stirrat (1984) records that the Sinhalese identity was so strong as to overpower the religious identity of Sinhalese Roman Catholics when they attacked Tamil Roman Catholics.

Caste is Real and Ancient

A part of this living lie in denying our regular caste observations is to claim that Tamils never had caste and had a very pure egalitarian society until the Brahmins came along and polluted us. Thus, we have Dr. V.S. Rajam (The Hindu 30 May, 2015; Rajam, 2015) telling us

I could not find casteism and untouchability in Sangam literature [the oldest known literature in Tamil], but found them only in the commentaries on Silapathikaram [from the post-Sangam Epic Period of Tamil literature, 3rd to fifth century AD].

Rajam is mistaken. Indeed her claims are old and not newsworthy for The Hindu to carry her claim. For example T.R. Sesha Iyengar (2004) also says “there is no reference to the term ‘Sudra’ in the whole of the Tolkappiyam.” He adds rather audaciously that the idea that

“mankind is divided into four varnas or groups of caste, such as Brahman, Kshatriya, Vaisya, and Sudra, was wholly foreign to the Southern Dravidians. Caste was non-existent.”

It is fashionable to do social engineering and historical re-engineering by making nonhistorical claims as a means of fostering ideals – in this case the ideal that caste was unknown to Tamils until introduced by Brahmins and Europeans. Worse there is a hint that caste was created by missionaries when Rajam’s publisher Ravikumar claims that those who argue otherwise are driven by the politics of deep-seated hatred, and that they cite research work of foreigners, particularly George L. Hart’s (The Hindu, 30 May, 2015).

However, George Hart is an eminent, widely respected Tamil scholar and Emeritus Professor of South and Southeast Asian studies at University of California Berkeley. He is known well to this writer. His services to the Tamil language are immense in that he was instrumental in initiating and leading the successful campaign to endow a permanent Chair in Tamil at Berkeley following his retirement. If not for him, the study of Tamil would have disappeared from Berkeley.

Dr. Rajam argues further that Fr. Henrique Henriquez, SJ, the 16th century Jesuit missionary to South India and North Ceylon, was the first to use the word casta, which later became caste in English. However, inventing a word to describe caste in a foreign language, indeed is not to invent caste itself as implied.

What then is the truth? The answer lies in the Tolkappiyam, the oldest work of Tamil literature available to us that Rao Bahadur C.W. Thamotharampillai (Hoole, 1997) is credited with ferreting out in pieces from here and there and publishing with a commentary:

The author of Tolkappiyam, Trinadhumagni (a.k.a. Tolkappiyar, a name adopted for the Tamil country), was the son of the Brahmin sage, Jamadagni, according to the Tolkappiyam’s prefatory verse. The Indologist, the late Kamil Zvelebil (1973), tells us in his masterpiece, The Smile of Murugan, that Jamadagni was a Rsi mentioned in the Rgveda, in the Ramayanam and the Mahabharatam. Zvelebil aso gives reasons why Tolkappiyar was a Jain; which makes him doubly Sankritized. When caste is evident in the Tolkappiyan how can we say there was no caste in the Sangam age?

The Tolkappiyam depicts the four-fold varna order. However, instead of the North Indian Brahmin-Kshatriya-Vaisya-Sudra division, it gives a Tamilized version of these four broad castes: Andanar (priests), Arasar (kings), Vaisyar (traders) and Vellalar. This also contradicts Dr. Rajam’s claim that there was no caste in Sangam times. That is because Vellalar have taken the place of the Sudras in Tamil usage. It explains why Sesha Iyengar ( cit.) could not find the word Sudra in the Tolkappiyam. In fact, the term Vellalar often takes the broader meaning of Sudra as in the Tolkappiyam in South India where even those like Muththuvel Karunanithy, although not agriculturists, are known as Vellalar. Modern scholarship reaffirms the Andanar, Arasar, Vaisyar-Vellalar adaptation of Varna by Tolkappiyar’s time (Tulajappa, 2014).

Tolkappiyam shows caste stratification when it speaks of the high born (uyarnthor) and the low born (ili-pirappalar) (Agnihotri, 2010)

In Porulathikaaram Sutra 75, Tolkappiyar lays down the customary occupations of the Brahmins which are exactly “the same ones to which Brahmins of later ages have devoted themselves,” keeping the Dharma, learning, teaching, sacrificing and conducting sacrifices, receiving and making gifts. Confirming these very same occupations of Brahmins, in one of the earliest Sangam works, Padirruppattu (Poem 24, II, 6 to 8), the Brahmin author Gautama tells us of a king “as following the path of the Andanar (Brahmans),” keeping the Dharma, learning, teaching, sacrificing and conducting sacrifices, receiving and making gifts. Gautama himself celebrated ten Vedic sacrifices and at the end of the tenth a Brahmin and his wife became invisible and went to heaven. Another Brahmin author in the same anthology, Kapilar, refers to a monarch “not knowing obedience except to Brahmanas.”

There is little doubt that caste among Tamils is as old as the earliest written records of Tamils. Among Sinhalese, the growth of Buddhism was as a result of the Buddha rejecting caste, and yet the Sinhalese hold on to caste as fastidiously as do Tamils when their publicly announced religion is firmly opposed to caste. Delimitation Committee members tell us that most of the numerous complaints they have received have to do with gerrymandering based on caste. It is reliably known that one of the major parties, when interviewing persons who have requested party nomination to stand as a candidate, asks what their caste is. We must therefore conclude that the Sinhalese are still adherents of their ancient pre-Buddhist religion, Hinduism, whether as descendants of indigenous Nagas or Kuveni or Ravana, or South Indian immigrants or the obviously Saiva King Mootha Siva (the father of the first Buddhist king in Ceylon) or of Vijaya the Hindu Prince from India.

Tackling the Detraction from the Donoughmore-Soulbury Heritage

We see that the firm adherence to caste and its dictates in identity politics takes away from our democratic heritage, while caste itself is not only a fiction but abhorrent to modern values and Buddhism’s tenets.

However much we may dissemble otherwise, caste is a fact of life. It is not going to go away and we must learn to deal with it in line with our laws, doing whatever we can. The Mission Statement developed by the Election Commission for its Participatory Strategic Plan, is to:

Raise critical consciousness among all stakeholders, ensuring the protection of people’s rights and conduct free, fair and credible elections efficiently and effectively that safeguards the people’s sovereignty and universal franchise based on democratic principles.

Going by feelings in Jaffna (which may be expected to apply to other parts of Sri Lanka as well), the part about credible elections is still not applicable to the lower castes as they do not believe the results. They simply have no confidence in results from elections conducted by Vellalas.

For example, it is estimated at seminars on caste that 90% of the Diaspora Tamils are Vellalas and 50% in Sri Lanka. Indeed with the exception of foremost schools like St. John’s, Hartley, Hindu, Chundikuli, Hindu Ladies and Vembadi in Jaffna, most rural schools are almost entirely servicing the low castes as rural Vellalas travel far from their villages to be in these big schools. The Panchamar therefore feel there is intrigue against them.

Indeed there often is intrigue against the Panchamar as their schools are shut as the Vellalas move to the big schools. N. Thamilalahan (All Ceylon People’s Maha Sabai), says Chaiva virulence is unshakeable. The 38-member Northern Provincial Council has only 2 Panchamar, both Pallar, and perhaps a third closet Panchamar. All Tamil MPs are high-caste. Additional GA Mullaitivu (an Ilavalai Pallan) has been denied a Government Agent (GA) post while 5 of his same seniority are already GAs. Of the 15 AGA divisions, only Changanai got a low-caste AGA (and that too only recently). Two new female Paraiya teachers posted to Chunnakam Nageswary Vidyalayam were rejected by the principal and reposted. An Ambattan-caste (Barber girl) in Nelliady who was elected by her fellow students as head prefect had the teachers objecting, and obtained justice only by going to the Human Rights Commission. Nearly all IDPs in camps for 25 years are Panchamar while the others have been looked after. (It is noteworthy that almost all those executed at lamposts, according to Gunasingam, were Panchamar used for shooting practice while many Vellalas justified the executions as those of criminal elements. In the last days of the war in 2009, Gunasingam worked with international agencies to appeal to V. Pirapaharan to let the refugees go, but none of the Diaspora or major party leaders except of the EPDP, were willing to lend their voices to this appeal.)

In these circumstances, there is no confidence among the Panchamar in the operative system of governance. In their minds, election results are not credible. Seeniar Gunasingam who was an LSSP-UPFA candidate in the last parliamentary elections in 2015 lost and his results were never posted. Election officials state that they informed the three winning parties (TNA, UNP and EPDP) of how they fared and if Gunasingam had asked, he too would have been informed. Similarly, in counting, he said instead of counting ballots box by box, three boxes were emptied as three piles of ballot papers and counting went on by three different groups. He says he was able to observe only one of the three counting efforts and anything could have happened in the other two. Election officials when queried say that if they had counted box by box, the release of results would have taken two more days and if Gunasingam had objected they would have counted box by box even if it took forever. Nadarajah Thamilalahan referred to earlier, was a Pallar-caste LSSP-er and UPFA candidate in the last NP Provincial Council Elections. It is alleged he had his losing votes displayed under the unknown name Tharmakulasingam. He does not know why but thinks there was some hanky-panky. These show absolute lack of communication leading to loss of trust.

When asked why the Panchamar never contest under Tamil parties in the TNA where they will not be seen as agents of the Sinhalese, they say they meet with hostility and are never given nominations. They even blame the much venerated S.J.V. Chelvanayagam saying he was silent on the 1968 Temple Entry crisis at the Maviddapuram Temple (despite the Prevention of Social Disabilities Act (No. 21 of 1957)) as well as on the Changanai Funeral at that time when those in the procession and outsiders fired on each other over a caste dispute, leading to killings (When Sinhalese leaders queried Mr. A. Amirthalingam in parliament, he deflected the issue, joking that it is a minor Vietnam). They add that when they take shelter even in a left party, they are cheated because, even leftists, so long as they are Vellalas, have a Vellala mindset. As examples they cite two instances. First, in a recent Jaffna mayoral election, it was agreed within a party that the one with the highest preference vote would be the Mayor. When that turned out to be a Panchamar, a Vellala woman who did not do so well was made mayor citing the alleged fact that the person who came No. 1 was not quite literate. And, secondly, in the Northern Provincial Council elections, the Panchamar worked hard and got Kandasamy Kamalendran of the Nalava caste elected with the large Panchamar vote bank. He became the Leader of the Opposition in the NP Provincial Assembly, but then got arrested for involvement with a Vellala mistress named Anita and the murder of her Panchamar husband[9]. The community expected another Panchamar to be Kamalendran’s replacement because of the efforts they had put into the election, but it turned out to be a Vellala when most votes (if not nearly all votes) for their party were from Panchamar. The phrase used by Vellalas on the Panchamar, “He has shown his low-caste thinking,” was now been turned on the Vellala leader. Telling him that he had shown his Vellala thinking, some Panchamar like Gunasingam moved away to the SLFP/UPFA.

This writer’s inquiries reveal no irregularity in the conduct of elections by officials. But the lack of good will and the resulting lack of full communication between castes is leading to suspicions and the erosion of the ideal of “trusted”, “credible” election results. That is a great pity.

Conclusion

We therefore see that despite the many advantages we have reaped from the Donoughmore Constitution and the Soulbury Constitution that followed, identity politics and our faith in the caste system which is a form of racism, have taken away from our proud heritage. The foremost place being given to any religion makes us citizens unequal. The caste system will never go away so long it is a means for us to say we are better than others are. At best, we can weaken caste’s hold on us by pointing out that it is an intellectual hoax.

These limitations mean doing the best we can and working with the system. We need to infuse confidence in the electoral system among the dispossessed oppressed castes. This means communicating with them rather than treating them as traitors just because they do not jump on to the high caste bandwagon of nationalism. The major political parties must deliberately focus on policy issues rather than identity issues and make the effort to include Panchamar in their candidate lists and then be fair to them. Indeed, the big parties must use the ongoing constitution-making exercise to render our state truly secular. It is that kind of commitment to equality that can at the same time make the oppressed castes buy into the idea of nation-building.

The Election Commission has begun discussions with political parties to move away from identity politics. In drafting a code of ethics for parties, the idea of leaving out terms of ethnic appeal from the names of political parties has been mooted. Such example words would be Tamil, Muslim, Eelam, Hela, Sihala etc.

It is not clear to this writer, however, that such a course of action is progressive. Minority parties are often formed to protect minority rights and these words indicate why they exist and what they stand for. Can we then fairly ban these words from party titles? Especially when major parties without these ethnic appellations are essentially advancing communally charged one-sided policy positions like fostering one religion and giving it foremost place as when, at the Seventieth Convention of the UNP, both the President and Prime Minister jointly espoused and endorsed that communalist position of elevating all Buddhists as favoured citizens above all others? How does it make sense to prevent minorities from rallying people to fight for their threatened status using party names indicating what they stand for? Forcing minority parties to give up nomenclature identifying their raison d’être becomes a way of silencing minorities while the major parties claiming to be national in character systematically assert their majoritarianism.

Our new human rights based Donoughmore culture is taking hold, albeit weakly and slowly (with Sri Lanka going through accession and ratification of key international UNHRC Conventions with fanfare but not incorporation into domestic law[10]). In franchise matters, disfranchised estate Tamils have been given citizenship and many obstacles to equality are crumbling as efforts are taken for women’s representation, against discrimination, and for the disabled in terms of wheel chair access to polling stations and ballots in Braille.

However, few are yet speaking of equality for the oppressed castes and between adherents of different religions. These remain some of the last, ethnically charged frontiers as we advance against these obstacles to a New World bringing home the equality of all citizens implied and held out as a promise in the Donoughmore Constitution.

In closing, the author thanks Marshal Fernando (Editor, Gleanings, by the Ecumenical Institute for Study and Dialogue, for permission to adapt this article).

Bibliography

ACM, Fifth Triennial Report of the American Ceylon Mission, Press of the American Mission, Jaffna, 1839.

[1] As nationalism dominates narratives in Sri Lanka, some Sinhalese Buddhists now say that Jayawardene was a Buddhist by virtue of his mother having been a Buddhist and that it is not correct to speak of his conversion to Buddhism. Party loyalties give some support to this twist of history because his rival Bandaranaike’s undeniable roots in Anglicanism prior to his conversion to Buddhism are firmly established. This view of Jayawardene’s Buddhism is misleading. First, older Anglicans from St. Michael’s Polwatte recall Jayawardene having been a regular choirboy there. Further, even if his mother had been a Buddhist, the rules of the Church were so strict at the time that his father’s marriage to his mother would never have been solemnized without her being baptized first and would have invited excommunication even if he had contracted a civil marriage. See ISPCK (1960), Chapter 26 on Marriage Canons 2-8 for the discipline to be imposed by the Church for marrying outside the faith.

[4] Two responsible, western trained Tamil Hindu scholars, K. Sivathamby, PhD Birmingham and P. Poolohasingham, D.Phil. Oxon, are very skeptical of the official narrative denying that Navalar was ever a Christian. Prof. Sivathamby (1979) tells us that, “Navalar came from a family which can safely be described as having responded successfully to the changing employment patterns of the higher caste” and goes on to say that Navalar’s father was an Aratchy at the Kachcheri under the Dutch, who had picked up Portuguese, Dutch and English, and his brothers included two Notaries, an Udayar and an Aratchy, all serving loyally in the colonial service. Poolohasingam (1993) explicitly states that Navalar was indeed a Christian before breaking with Percival over caste. He quotes Veerasamy Mudaliyar as stating that Navalar lived as a Christian and gives Navalar’s pre-Savite Christian name as Pairaat[4] and tells us how Navalar, while living as a Christian, was sent from Jaffna by Christian missionaries to Chennai to observe and learn how the Christian missions there converted Hindus to Christianity. The fact that Navalar went to The Wesleyan Methodist Seminary, a centralized establishment where the best were being trained to be Christian ministers, is also suggestive of his Christian roots.

[5] The Missionary Intelligencer records that, “the Dutch, when they possessed the island, forced the inhabitants to forsake idolatry, built churches in every district, and compelled them to attend and receive the rite of baptism, without which no native possessed a title to land or could obtain Government employment (p. 373, Section: Jaffna Mission, 1869).

[6] In a talk delivered at St. James’ Church Nallur in July 2011 and based on historical documents in his Roman Church archives.

[7] At the risk of being called sexist, the observation is made that women are more likely to let on to their caste observations. When this writer asked for the use of a neighbour’s gardener for a day, the explicit instruction from the woman of the house was this: “You have to pay him Rs. 1000 for the day, no lunch, but tea at 11:00 and 3:00 for which you must buy a disposable day cup at the supermarket and not use your cups.”

[8] The party had a broader appeal and included Dayan Jayatilleka as a Minister in the North-East Provincial Government.

[9] Although many reports such as that by D.B.S. Jeyaraj accused Kamalendran also of sexually harassing Anita’s young daughter, Gunasingam says it is untrue and typifies what their community faces. Their Vellala leaders, says he, lack camaraderie (tholamai) with them although they are addressed as Comrades (Tholar), and these Vellala leaders of predominantly low-caste Left parties fear their fellow Vellalas, so whenever the Panchamar do well like Kamalendran, just one error is used to add to their woes. He says that Shanmugathasan of the Communist Party (Peking Wing) was the only Vellala Left leader with true sense and practice of Tholamai. That assessment is chilling in that if correct, there is really little hope of getting Vellalas, especially non-Leftists, to help in righting this historic wrong to the Panchamar

[10] Incorporation into domestic law is required for a dualist state like ours. See the sad case of Nallaratnam Singarasa who was convicted solely on the basis of a confession he says he signed under torture, the Supreme Court refused to hear his appeal, he went to the Human Rights Committee in Geneva which asked the Supreme Court to examine his case and the Supreme Court ruled that the convention under which he appealed had no standing because it had not been incorporated into our domestic law by Parliament whose law-making powers had been arrogated by the President in signing the treaty, the matter is now being re-canvassed by the Bar Association of Sri Lanka (Chandraprema, 2016)

Buddhist monk Galagoda Atte Gnanasara who thretened police officers and used ‘Sudda Sinhala filth’ in June 2012 at Pinnaduwa was charged for forcible entry to the Southern Expressway,obstructing police duties and damaging State properties.

The Homagama Police on Monday has filed a charge sheet against Ganasara and two other monks namely Witharandeniye Nanda and Ambilipitiye Vijitha at the Homagama Magistrate’s courts.

The video below shows the monks were also making racist remarks against Muslims and Tamils in the scene of the incident.

To the local Tamils and Muslims everything was stacked against them, with a number of ministries and state agencies working towards their discomfiture. Out of several moves, by the State they may protest and stop some of them. But the ones that succeed would have done a lot of damage. To those trying to protect the interests of the local community or seeing the long-term prospects, it was to live at the end of one’s nerves.

The colonisation scheme for Sinhalese at Periyavilankulam – renamed by its Sinhalese translation Mahadivulwewa – was started with European Community funds in the early 80s. Mr. R. Sampanthan, MP for Trincomalee, immediately took alarm and went up to Minister Gamini Dissanayake, whom he had known as a junior lawyer, and complained about it. With characteristic courtesy, in the presence of Sampanthan the Minister made out a written order cancelling the settlement. Bandaragoda was then GA Trinco. It was soon learnt that Nanda Abeyawickreme, Secretary Lands, had sent phone messages to the Trincomalee Kacheri, asking for the settlement to be speeded up. This was done so that the formal order to stop would be anticipated by a fait accompli. There was little the Tamils could do about a government that functioned in this manner. It again illustrates the role of the GA in Trincomalee.

There were a number of government figures scouting around Trincomalee for places to plant Sinhalese colonies. Among them, was Cyril Mathew, Minister for Industries and Scientific Affairs. There are ancient Buddhist ruins in the district of very disparate origins, representing the country’s variegated past. The ruins of Vilgam Temple had a number of Tamil inscriptions, and those at Kuchchaveli and Thiriyai were of Mahayana origin. The ideological position articulated by the State was that these ruins were proof of the region’s Theravada-Sinhalese Buddhist past, so putting forward a justification for Sinhalese colonisation. It was based allegedly on Buddhist piety – the renovation of temples.

Thiriyai was a village north of Trincomalee with a long history, and was peopled by Tamils. Neelapanikkan Kulam, a tank near the village, was renovated about the 1940s, and the villagers had since been cultivating the fields nearby. There is an old Buddhist shrine close to Thiriyai and another nearby in Mylaweva on the Thiriyai- Gomarankadawela Road, which has Tamil inscriptions. But the cultivation of the fields referred to, had not been regularised by the issue of permits. This was really default on the part of administration, which was deliberate. The farmers were themselves quite ignorant of such matters.

The Government’s moles in the Trinco Kacheri discovered this and sought to deprive the farmers of the land. About 1980 when the MP, Mr. Sampanthan, was at a TULF party conference in Vavuniya, a man from Thiriyai came there with some alarming news. In official secrecy unknown to the villagers or their representatives, 2000 acres of land in Thiriyai had been earmarked for the Cadju Corporation. And one day out of the blue, Corporation officials with tractors, labourers and cashew plants descended on the villagers to convert their rice fields into a cashew plantation. In the normal pattern of things, this was to prelude Sinhalese settlement.

Sampanthan rushed to Colombo, and went with the TULF President, Mr. M. Sivasithamparam, to meet Mr. M.D.H. Jayewardene, Minister for Plantation Industries. They pointed out to him that apart from the injustice involved, it would be the height of absurdity to use irrigated paddy land for cashew. Cashew is normally planted on dry and poorer soil closer to the sea. The Minister was taken aback. They asked him who was responsible? The Minister answered that the order had come from the very top and that he was helpless in the matter. However the Minister suggested that he would ask Mr. Ekanayake, the Chairman of the Corporation, to go on a visit to Trincomalee. Then Sampanthan could go with him to Thiriyai and take it up from there.
On the day in question Sampanthan was to meet Ekanayake at 9.00 AM, in the office of Bandaragoda, GA Trincomalee. He had asked the farmers, to be in their fields. As Sampanthan walked into the GA’s office, he heard the tail end of Bandaragoda’s conversation. He was advising Ekanayake to consider, if needed, possibilities other than cashew such as paper grass. He was evidently very averse to letting go his discovery of land without permits serving Tamils.

Upon the two going to the Thiriyai fields, they found a section of the land planted with cashew. Sampanthan in a fit of anger plunged into the fields, pulled out about four cashew plants and threw them away. He then shouted to Ekanayake, ‘Are you mad?’ The bunds and channels made it clear that this had been a rice growing area for some time. Sampanthan then went to Colombo and told President Jayewardene, “Quite apart from the question of Tamils and Sinhalese, would you like to go down in history as the first head of state who planted cashew in paddy land irrigated by a large village tank?” Jayewardene agreed to cancel the cashew project. But this was just one attempt stalled.

Minister Cyril Mathew, for one, had a secretary for Trincomalee named Piyasena Jayeweera, roaming around Trinco in a Ministry for Scientific Affairs vehicle, figuring out ancient Buddhist sites and places to plant Sinhalese. Jayaweera was the man who owned up to assaulting Professor Saratchandra on 22nd July 1982 when he was about to deliver a lecture on the ‘Decline of Sri Lankan Culture’ in the All Ceylon Buddhist Congress auditorium. The thugs had assaulted several people on the rostrum including Buddhist monks. The ‘Aththa’, the following day, published details of government vehicles used by the thugs. Jayaweera claimed that he did this to stop Professor Saratchandra attacking the ‘government’s policy’. Saratchandra was emeritus professor of Sinhalese and former ambassador to France.

Functioning in this framework, the State became extremely paranoid over Gandhiyam’s relatively small-scale attempts at settling Tamil victims of the 1977 violence from the South, mainly on land abandoned by better-off Tamils owing to insecurity. One such place was Pankulam on the Vavuniya Road. The fact that these Tamils were victims of communal violence evoked no sympathy. Bandaragoda could not evidently contain himself. He once remarked to a senior Tamil citizen, “When I go to Pankulam, I SEE ALL THOSE PEOPLE”. The senior citizen responded, “What people? Aren’t they human beings?” The State’s attitude was that any Sinhalese was welcome to settle anywhere in Trincomalee and have the encroachment regularised, but these Tamil victims had no right to be there at all.

On 28th November 1982, President Jayewardene visited Trincomalee for the opening of the Mitsui cement plant. Apparently timed for his visit were articles in the Weekend and the Sunday Island, dealing with the activities of the Gandhiyam. Finding a sinister drift in the articles, Sampanthan telephoned Navy House and went to see Jayewardene. He explained to Jayewardene the plight of those being supported by the Gandhiyam, and invited him to go with him and see for himself the laudable achievements of Gandhiyam in giving these poverty stricken, emaciated people a new self- respect. Jayewardene replied that if Sampanthan said so it was acceptable to him and there was no need for him to see for himself. (See Sect. 8.2 for the substance of these reports.)

On 14th March 1983 came the first signs that the State was getting ready to use force on those receiving Gandhiyam help, when some government officials claiming to act on orders from the AGA, went into Pankulam and set fire to 16 huts occupied by former refugees. Thereafter the Tamils of this area lived in constant terror until they were forced to flee willy nilly as refugees in 1985. The same happened to Sinhalese in the area too, as both sides increasingly took to attacking civilians (see Chapter 20).

Sampanthan recalls that in March and April 1983 when there was still no active Tamil militancy in the area, the Tamils of the area frequently fled to the jungle in terror. Then he had to go there with others and call them out.

The Office for National Unity and Reconciliation (ONUR) headed by Chandrika Kumaratunga has today urged relevant authorities to take appropriate action against all hate speech incidents regardless of the social status, ethnic/religious background or political affiliations of the perpetrators.

“The strictest action must be taken without delay, against persons or groups who act to provoke disharmony by creating divisions among citizens along ethnic and religious lines.” the Office for National Unity and Reconciliation said in a statement.

We publish below the statement in full:

Statement by ONUR on the Rise of Hate Speech in the Recent Past

The Office for National Unity and Reconciliation (ONUR) notes with concern, the rise of hate speech in Sri Lanka in the recent past, which challenges the initiatives being taken by the government to heal our country after decades of bloodshed and destruction.

Hate filled expressions and actions by groups with vested interests, resulting in demeaning, denigrating and inciting violence against fellow citizens of various ethnic, religious backgrounds has no place in Sri Lankan society.

For the first time in contemporary Sri Lanka, the Government has a stated vision to build One United Nation by promoting Reconciliation and a lasting Peace. The Government is working towards bringing about reconciliation among all communities, making it the highest priority.

This is in contrast to the years before 2015 where power brokers in the state fomented communal and ethnic hatred, shielded by a culture of impunity, thereby inciting racism and violence against fellow Sri Lankans.

The Government and the people of Sri Lanka are presently engaged in the noble task of rebuilding a society in which Good Governance prevails. The challenges faced in realising this are immense. Yet, the new opportunities that have opened up and the favourable socio-political context created since January 2015 must be seized.

The active participation and leadership of ALL patriotic Sri Lankans is essential for the achievement of Reconciliation, Peace and honest, effective, people friendly Governance if we are to attain political stability, economic growth and progress we so richly deserve as a Nation. We must work towards acknowledging the differences and celebrating the richness of diversity in our multi-ethnic, multi-religious country.

Short, medium and long term efforts are underway to address the grievances of all communities and to build a sense of respect, equality and pride in every citizen, living in an inclusive Sri Lanka where each person has the opportunity to enjoy the freedoms that are the right of all citizens.

The strictest action must be taken without delay, against persons or groups who act to provoke disharmony by creating divisions among citizens along ethnic and religious lines. President Maithripala Sirisena, Prime Minister Ranil Wickremesinghe and the entire government have categorically reiterated that hate speech will not be tolerated.

We welcome the proactive actions by civil society and religious leaders in countering the attempts to spread hate by very small yet vocal groups.

ONUR, while appreciating the arrest of two individuals from two different communities, accused of hate speech and for inciting racism, urges the relevant authorities to take appropriate action against all such incidents regardless of the social status, ethnic / religious background or political affiliations of the perpetrators.

We note that there are numerous complaints against hate speech and incitement to racism where strong evidence is available yet investigations and prosecutions are pending for some time. We urge the law enforcement authorities to take early action on all these incidents.

We welcome His Excellency the President and the Hon. Prime Minister’s unequivocal statements that we cannot permit racist or extremist elements from any community to challenge or imperil our chosen path to a stable, prosperous and plural Sri Lanka.

We appeal to all Sri Lankan’s to engage with the Government to realise this goal.

Chandrika Bandaranaike Kumaratunga
Chairperson, Office for National Unity and Reconciliation

The military victory led by an overwhelmingly Sinhala-Buddhist army over the tyrannous LTTE in 2009 has, among other things, injected in the minds of certain sections of the Buddhist community that Sri Lanka belongs only to the Sinhala Buddhists and others are permitted to live here only at the behest of the Buddhists. This twisted ideology which is now developing into an anti-Muslim, anti-Christian and anti-Tamil paranoia is totally contradictory not only to the noble teachings of the Enlightened Buddha but also and more significantly to the millennial historical tradition of ethnic and religious tolerance indelibly engraved in the long legacy of the island’s Buddhist monarchs. To deny this historical truth is to court intellectual dishonesty.

The current series of attacks, spearheaded by the so-called protectors of Buddhism dressed in monkish garbs and backed by elements of Buddhist petti-bourgeoisie, on Muslim shrines and mosques, Muslim property and even Muslim lives is a sad reflection of this post-war paranoia. It is time to expose the intellectual bankruptcy, and political hypocrisy of this paranoid group before explaining the state of paralysis in the Muslim community that has allowed this tragic episode to gain momentum in the first place. The grievances of the paranoid fall into three categories: religio-political, economic and demographic.

To take the first issue, it is true that Muslims in Sri Lanka, like in many other parts of the world, have become at least outwardly more Islamic since the 1980s as demonstrated by their increased punctiliousness in observing religious rituals and in organizing and promoting religiously inspired gatherings, conferences and other such activities. These large gatherings naturally called for a parallel increase in the number of religious centres such as mosques and madrasas. Quantitatively and qualitatively the number of mosques in Sri Lanka has increased, but whether that increase is disproportionate when compared to the increase in Hindu temples, Christian churches and Buddhist vihares require statistical evidence. Neither the paranoid mob nor the Muslim community has so far provided such comparative data. It is however beyond dispute that the outward appearance of at least a section of male and female Muslims as reflected in their mode of dressing has changed rather dramatically over the last three decades. The black abayah or robe and niqab or facial cover with cleavage for eyes for Muslim women to see, and for Muslim men, similar robes with turban although not necessarily black in colour, and thicker and longer beards are all of Middle Eastern cultural influence but misconceived by many as religiously prescribed. Were Muslim ladies of yesteryears who wore white and coloured saris and Muslim men dressed in sarong, shirt, coat, shawl and cap were less Islamic than these pseudo-Arab purists? That this confronting attire has become a symbol of Muslim alienation in plural societies is common knowledge. Yet, this is something that the Muslim community itself has to tackle through intra-religious dialogues and intellectual debates, which do not seem to be happening in the country at the moment. Even the current debate on Muslim personal laws should not have waited until provoked by the EU.

However, to tie these outward appearances and elements of religious fundamentalism with a hidden Muslim political agenda, as alleged by the paranoid Buddhist rabble, is mischievous, malevolent and at times sounds comical. At no time in the history of Sri Lanka did the Muslims even contemplate to bring the country under Muslim rule. Even after independence while the Tamils were aspiring and fighting for a separate state the Muslim community uninterruptedly worked as political partners with the majority community. It is true that a few misguided Sri Lankan Muslim youth has joined the ISIS bloody caliphate, but that doesn’t in any way indicate that the Muslim community here is conspiring to create an ISIS vilayet. Even when the IPKF armed the Muslim Home Guard the community accepted those weapons to protect the Eastern Muslims from the LTTE killers and not to establish a Muslimstan. This allegation by the paranoid against the Muslim community, unless driven by a foreign hand, is groundless and should be rejected.

The economic grievance that Muslims are taking over the economy is a repetition of the 1915 scenario with one difference. In 1915 the target of the Buddhist nationalists was a foreign minority but the target of the current crowd of ultra-nationalists is a domestic minority. The fact that Fashion Bug and No Limit – the two leading Muslim retail establishments that have become the marked objects for the paranoid arsonists – which are able to out-beat their commercial rivals should be seen in the context of Sri Lanka’s post-1977 neo-liberal open economic environment rather than as an index of an all-conquering Muslim economic hegemon. The open economy unleashed once again the freedom for Muslim business acumen to explode which remained repressed under the previous socialist regime. With the re-born freedom for economic enterprise and with capital accumulated previously from working as expatriates in the Middle East or by liquidating inherited property a few Muslim individuals like the owners of the two establishments noted above entered the retail sector and through hard work, skill and intelligence were able to capture a niche in the competitive world of business.

Economists and social scientists who have studied the operational dynamics of plural societies have discovered the fact that in such societies when ethnic and religious minorities outshine their rivals in economic pursuits their success provokes envy within the majority. Chinese in Malaysia and Indonesia, Indians in Burma and Kenya, Jews in pre-twentieth century Europe are examples of this phenomenon. In times of economic crisis these minorities invariably become victims of communal jealousy and anger. When that anger breaks out into violence elements the petty-bourgeoisie from the majority community exploit the atmosphere to make political and economic capital out of it. This is what is happening in present day Sri Lanka. However, in a democratic polity if political governance is based on principles of freedom, equality and justice successful businesses and industries, as long as they meet their state sanctioned legal and fiscal obligations, must be protected and promoted. While Singapore for example is proud to advertise an ethnic-minority-owned retail firm Mustapha Samsudin & Co., in Sri Lanka, which wanted to become a Singapore at one stage, successive governments and their security agents by not taking decisive action against minority-slayers have let themselves to become silent partners to this ethnic and economic crime. How does one expect this country to prosper?

Allied to these economic crimes is the propaganda about an imminent Arab threat to Sri Lanka. This is similar to the so called Indian threat though the local Tamil community which lost all its credibility when India supported Rajapakse Government’s military moves to eliminate LTTE. Does anyone even with an iota of knowledge about the Arabs, who have virtually sold out the Palestinian cause and killing each other instead, think that they will come to the aid of Sri Lankan Muslims in times of crisis?

The third grievance of the paranoid is demographic. Muslims are accused of inordinate fecundity. Their evidence for this is the census figures of 1980 and 2012. Without entering into any statistical exercise it should be pointed out that the net increase in population is the result of the interplay of three forces: birth rate, death rate and migration. The forces of outward migration and internal transmigration have significantly affected the inter-ethnic population balance between the 1980s and 2012. While the emigration of hundreds of thousands of Sinhalese and Tamils to settle permanently abroad reduced their total number remaining at home, the relatively small emigration from the Muslims naturally enhanced their ethnic ratio. At the same time internal dislocation caused by the civil war caused large number of Muslims from the Tamil districts to transmigrate to the Sinhalese areas especially to Colombo and its surroundings. This upset the ethnic balance in these districts in favour of Muslims. These facts are totally and deliberately ignored in the vicious propaganda carried out by the paranoid about an impending Muslim population threat.

In spite of a government that is more interested in preserving its vote bank than in the long term welfare of the nation, all these issues are easily solvable if the Muslim community has a visionary leadership. With a bunch of opportunistic politicians who are more focused in amassing their own fortunes than in attending to the community and national issues, and with a gutless intelligentia which is too afraid to lead a social reform movement within the community the Muslims are left at the tender mercies of an unenlightened religious leadership. The Muslim community is in a state of paralysis and what is happening now is a tragicomedy.

A road for the village has been a fail-safe election promise in Sri Lanka since Independence. Sixty thousand kilometres of rural roads were constructed between 1960 and 1990. Since 2000, around Rs. 160 billion has been spent on carpeting or concreting thousands of kilometres of rural roads. But investment on rural roads has not translated into economic prosperity for these areas. Instead, they have become a burden to maintain. The economic damage inflicted on the country by political and welfare-oriented road construction is yet to be studied and documented.

The open economy in 1977 saw Sri Lanka with an inadequate trunk road network but with an extensive and largely non motorable rural road network. The open economy could not flourish adequately due to the lack of connectivity between rural areas, urban logistics nodes, the port and airport. The 1980s and the 1990s saw heavy borrowings to rehabilitate and resurface the main roads a task that became futile as the increase in traffic hardly gave any real travel time benefit.

The economic damage that purely politically and welfare oriented road construction has inflicted on Sri Lanka is yet to be properly studied and documented. As an internationally indebted country, we continue to borrow heavily to modernize our national road network, the importance of which cannot be over emphasized. But in the end a highway is a national investment. Just as no individual or a company will invest in a business venture unless a reasonable return is anticipated it is standard practice globally for economic feasibility studies before embarking on national road projects.

Today, highways are being planned as if there is no alternative. Possible alternatives or economic viability is not studied. The award of contracts without careful study or competitive bids is nothing less than a calculated theft of public funds, a mortgaging of the country’s future. This article shows how most expressways now being proposed have not been studied adequately and how, at the prices being negotiated, will be economically unfeasible. Maintenance is estimated to cost even more than toll collection, creating still more financial woes.

It was found that many road projects undertaken before January 2015 were blatantly inappropriate financial transactions. But nobody has been held responsible, let alone charged. Clearly, all those who aided and abetted such activities are free to continue even today.

The taxpayers, whose money is spent on these projects, must insist on proper feasibility studies being completed and made public before ministers lay foundation stones or issue media statements. The Cabinet, the Committee on Public Enterprise (COPE) and the Department of National Planning should demand that such reports are presented and publicly discussed before huge sums of money are approved.

The public must also insist that no major project is financed on negotiated loans and nominated contractors because the resultant lack of competitive pricing has been the single reason for why expressway construction costs have skyrocketed in Sri Lanka. This malady is not restricted to expressways. Today, funds for other road construction projects are distributed across different levels of government quite liberally. Politicians of all strata are happy to nominate their contractors for the work. It is left to the public to imagine the rest.

Southern Expressway

A 1997 feasibility study for the Southern Expressway led by this author estimated the cost of the four-lane 131km highway from Kottawa to Godagama in Matara at Rs 20.4 billion (US$400 million) at US$ 3.1 million a km with a favourable Economic Internal Rate of Return (EIRR) of between 19% and 25%.

In 2000, the Japan International Cooperation Agency (JICA) and the Asian Development Bank (ADB) financed this project after International Competitive Bidding (ICB). In 2006 some of the contracts were re-negotiated due to political initiatives that led to converting two lane sections to four lanes. With this the final cost at completion was an increase of over 200% to US$ 10 million per km. An economic analysis using the higher cost and lower benefits represented by lower-than-estimated traffic volumes reduces the actual rate of return to 10-12%, making this marginally justifiable.

The next phase of the Expressway, the 30km section between Galle and Matara, was awarded on a negotiated basis to a Chinese contractor in 2011 with financing from Exim Bank of China for a contract value of Rs 18.7 billion (US$ 165). This was not on competitive bidding. But since proper estimates and designs were available, the final cost was a modest US$ 4.5 million per km– the only such contract to be favourable.

The final section of the Extension of the Southern Expressway from Matara to Hambantota, a 74 km section also studied by this author in 2007, was found to be feasible provided that proposed development in Hambantota preceded the construction of the highway. The cost was estimated at Rs 33.2 billion (US$ 300 million) or US$ 4 million per km. The EIRR was estimated to be only 6.2% p.a. with a recommendation was for delayed construction.

However, in 2013/14 the Road Development Authority (RDA) awarded this highway on negotiated design-and-build basis to Chinese companies for a total contract value of Rs 224 billion (US$ 1892 million) amounting to US$ 20 million per km. Given that the anticipated primary industries in Hambantota have not materialized and that the cost has escalated from US$ 4 to 20 million per km, the economic return from this 96km project will be negative and a significant loss.

Colombo-Katunayake Expressway (CKE)

In 2008, a design-and-build contract was signed with a Chinese firm for a cost of Rs 32 billion (US$ 320 million) for the 26km four-lane highway. While there is no comprehensive economic feasibility study available, an internal RDA report dated 2008 stated that traffic levels on the CKE would reach over 50,000 vehicles per day by 2016 and that the rate of return would be 14.1% p.a. The current traffic levels, however, are less than 50% of estimated. With the final cost of the highway at US$ 353 million, the actual EIRR translates to a marginal benefit of 10%p.a.

Outer Circular Highway (OCH)

The study for this was completed by Oriental Consultants of Japan in 1999. It was found to be economically feasible with a rate of return of 18.9% p.a. for a four-lane highway to be constructed in four sections. The cost of two sections was to be financed by the Japan Bank for International Cooperation (JBIC). In 2009, the first section (OCH1) of 11km between Kottawa and Kaduwela was awarded on ICB to a Chinese firm. Its cost was US$ 212 million at US$ 19 million per km.

In 2012, the Japanese restricted the second section (OCH2) between Kaduwela and Kadawatha to Japanese contractors resulting in one company submitting a proposal at a very high price. Even with a recommendation to re-bid, the Government in 2012 decided to award it to the same company following superficial negotiations. The cost for this 9km section was US$ 329 million (at US$ 43 million per km), a significant increase over OCH1.

The initial feasibility study made by Oriental Consultants–a leading Japanese engineering consulting firm with extensive international experience estimated the cost to be US$ 120 million for OCH1 and US$ 80 million for OCH2. The actual cost of construction was 100% more for OCH1 and a phenomenal 300% more for OCH2. The traffic level of the OCH in 2016 is less than 50% of what was estimated, indicating that the rate of return of the OCH1 would drop significantly and in OCH2 even turn negative.

The third stage of the OCH from Kadawatha to Kerawelapitiya was also awarded in 2013 on a negotiated design-and-build basis with financing from China Exim Bank. The contract value for this 9km highway was negotiated for Rs 66.7 billion (US$ 535million), amounting to a record US$ 59 million per km. The actual cost estimated by Oriental Consultants of Japan for this entire 9km section was only US$ 50 million.

Northern Expressway-Central Expressway

In 2001, Euro Infra of Sweden under a grant from the Swedish International Development Cooperation Agency (SIDA) undertook a feasibility study for a 60km four-lane expressway between Kadawatha and Ambepussa costing Rs 19 billion or US$ 4 million per km. The EIRR (Economic Internal Rate of Return) was calculated at over 20% p.a. without tolls and 16% with tolls. A two-lane road was recommended for the section from Ambepussa to Hadeniya costing a further Rs 9 billion or around US$ 2 million per km.

However, after the reopening of access to the North in 2009, the author, at the invitation of the RDA, proposed a trace for the Northern Expressway since it was evident that the North and the East were likely to attract much higher traffic levels than Kandy. The feasibility study which examined the potential road trace northwards from Meerigama found that a 41km section could be constructed at a cost of Rs 35 billion or at US$ 5 million per km for which the EIRR was a marginal 10% (for achieving traffic levels of around 17,000 vehicles per day by the year 2031).

However, in 2011, the Government procured the services of the Australian-based SMEC International consulting firm without tender to undertake just the feasibility study of a 198km Northern Expressway. Astoundingly, this contract cost over Rs 1 billion!

The initiative was intended to be a mammoth construction project of four sections costing Rs 600 billion. However, the SMEC feasibility study dated October 2013 makes some imaginative assumptions to justify this highway at 12.1% IERR. The RDA has played a Jekyll-and-Hyde role: It accepted the study by making nearly the full payment while also rejecting it on grounds of technical inadequacy. Notwithstanding this contradiction, the RDA went ahead and inaugurated construction in 2014.

Thus, SMEC had severely compromised its position. A subsequent review by a university is also yet to be accepted. In any case, it has assumed the same RDA-estimated cost for the project without any verification or comparison and, thus, cannot be considered as a full and independent study.

While the entire country expected the new government to reexamine these highway projects, the opposite is true. There were superficial changes–such as shifting the starting point from Enderamulla back to Kadawatha, changing the name of the project from Northern Expressway to Central Expressway, and altering the starting point of the extension to Kandy. But the same project is proceeding as before.

In December 2015, Cabinet decided to obtain technological and financial proposals from the Metallurgical Corporation of China for the section from Kadawatha to Kossinna–a stretch that was to have been built with savings from OCH3. It was revealed a few weeks ago, however, that the entire Section 1 of 36.5 km is to be awarded to this same company for Rs 158 billion. This works out to US$ 30 million a km, 10% more than the cost per km before the elections!

The China Exim Bank with whom the Government has entered into an MOU has recently asked for a feasibility study for Section 1. The RDA has supplied a cut-and-paste job using material from different studies, including reports it had previously rejected. This is the sad plight of a country about to embark on its biggest investment in history, much larger than the Mahaweli project.

Based on previous feasibility studies, which were done in an acceptable and transparent manner, the negotiated cost appears inflated several times. At this price, the traffic-heavy Section 1 will not yield a return rate of more than 4-5% p.a., indicating that it will be an extremely poor investment.

Last week, the Government announced that Section 2 has also been awarded–this time to consortia of local contractors for Rs 137 billion at US$ 24 million per km. As before, there is still no accepted feasibility study for this section at this expenditure. With traffic levels, that would only be a fraction of Section 1 and time savings that are even less, it is likely that at this higher negotiated cost, it would end up with negative economic returns.

It is widely known that expressions of interest were called from local construction companies for Section 2. But instead of calling competitive bids, the RDA formed consortia to negotiate costs for design-and-build so that there was only a single bid for each subsection.

For Section 3, limited bids are being called from Japanese companies. The media reported that the same Japanese company which provided the opportunity for the first large-scale cost escalation for the OCH2 during the previous regime is now in the picture again. Speculation is rife that Section 4 has also been awarded by negotiation to Chinese contractors. Hence it appears to be open-season yet again for highway robbery.

The RDA has not carried out a feasibility study for the revised cost. Sadly, the Exim Bank which provided this loan does not seem to follow the practice of other international lending agencies in asking for a rigorous study. This was pointed out by the writer prior to the Presidential elections. The current Government, a few months afterwards, announced a negotiated reduction in the cost. This circus act however, enabled the OCH3 contractor to negotiate and secure the first stage of the Central Expressway without competition as the so-called saving (which has now transpired to be almost nil) was transferred to that construction to avoid calling for international bids. This means this section too will have negative returns.

Impact on mounting debt

Of Sri Lanka’s foreign debt of Rs 3,544 billion rupees, at least 20% is on account of highways and expressways. The current projects will add up to over Rs. 850 billion, doubling the highway component in the foreign debt. This with interest is a debt of Rs 350,000 per household in Sri Lanka that has to be paid through taxes such as VAT by the current generation and the next. Furthermore, it can be rationally proven that these projects will not return an adequate investment and Sri Lanka will plunge further behind in its endeavour for economic progress.

There is also a myth propagated that expressways cover their cost with toll revenues. In 2015, the RDA earned revenue of Rs 5.3 billion from expressways. Policing, lighting, toll collection and administration together with maintaining expressway standards will likely exceed this as the surface wears out. The pay-back of the loan and interest is additional.

If there are indeed conspiracies against Sri Lanka, this extravagance will be the most obvious threat to our prosperity if we stand aside, watch and allow daylight robbery.

Highways are essential for Sri Lanka to become economically competitive while providing modern amenities to its people. Highway Construction Cost Indices used globally from 2002-2014 indicate an increase of just around 50% of cost per km in US$ during this period. Therefore, even after allowing for inflation, the real cost per km of four-lane expressways given in the table below is seen to have increased at a rate much higher than global trends.

In many countries, as local engineers gather experience, they are able to reduce cost. In Sri Lanka, the opposite has happened. It appears that, with time, unscrupulous elements have succeeded in finding more ways and means of increasing costs. This trend can only have a sinister motive.

The Exim Bank of China, which is funding most of these projects, is not asking for comprehensive studies as required by multilateral agencies such as the Asian Development Bank (ADB) and the World Bank. This allows ample opportunity for unchecked project costs benefiting the lenders, contractors and brokers. For example, let us say the actual cost of a properly-designed highway is US$5 million per km. If it has been poorly designed (with unnecessary viaducts, interchanges, crossings, higher embankment heights etc) there could be an increase by 50-100%; a further 30-40% if the material quantities have not been calculated properly; and a further 20% in the rates allowed. The overall ‘cost’ on paper would quickly escalate to US$ 15 million.

To keep a highway in motorable condition, a provision of around 1% of construction cost should be provided annually over its life. At current costs of Rs 4 billion per km, the 450km network of expressways planned by 2020 will cost, in today’s prices, Rs 18 billion per year just for maintenance alone. This is more than four times the entire maintenance budget of the RDA for 2017!

Does it matter?

The public applaud road building without realising the economic cost and damage of unplanned and uneconomical construction. The President and the Prime Minister, as well as many senior Ministers in this Government, campaigned to end corruption citing the previous regime’s highway projects. Claiming “We are not as bad as those before us” is not good enough to develop the country.

Parliament and, in particular, COPE, has largely neglected its duty to examine the RDA’s investments. The Committee on Public Accounts should be more vigilant about institutions such as the National Planning Department (NPD), set up to study such investments and advice Cabinet before it approves large financial commitments. It is not known if the NPD approved all these projects and, if so, what documents they studied to justify such investment.

No minister should be allowed to inaugurate projects unless full feasibility studies are completed and accepted by relevant agencies. It is hoped that at least the current COPE, which has shown intent and capacity in recent times, will take up highway expenditure as an important agenda for early investigation.

The RDA, along with the Government, should also be held accountable for waste in resources. In most cases, projects were simply formulated and implemented by a few selected officers in consultation with ministry officials. Highways were not properly planned or designed and construction bids were not called in an advantageous manner–at least to the country. The RDA has spent over Rs 1 trillion on road works over the last 10 years. It is clear that a sizable proportion of this has been wasted or stolen.

*Amal S. Kumarage (PhD) is a Chartered Civil Engineer and Senior Professor in the Department of Transport & Logistics Management at the University of Moratuwa. He is also the former Chairman, National Transport Commission and former Vice President of the global body of the Chartered Institute of Logistics & Transport (CILT). He has led transport studies in Sri Lanka and in South and Central Asia. He wrote a series of articles before the Presidential Elections in January 2015 exposing corruption and waste in the highways sector that was to become a point of intense political debate. This article revisits the same subject two years later to investigate the status quo.

Significant efforts have been taken towards reconciliation and integration of the Tamil minority in the Sri Lankan political system since the defeat of the LTTE in May 2009. However, the Tamil separatist movement has not been halted. It is pursuing a separate state through political means demanding an Autonomous Tamil Region merging the Northern and Eastern Provinces of Sri Lanka.

Using ample funds and cultivating access to the British, U.S. and other western governments, pro-LTTE Tamil Diaspora groups have influenced the United Nations in adopting the 2015 United Nations Human Rights Council Resolution (co-sponsored by the current U.S. backed Sri Lankan government) in Geneva and issuing the 2015 Report of the United Nations Human Rights Commissioner. Both documents call for accountability and international investigation of human rights violations in the final stage of the Sri Lankan armed conflict and international monitoring of transitional justice and reconciliation. Clause 16 of the U.N. Human Rights Council Resolution calls on the Sri Lankan government to devolve power on the basis of the 13 Amendment to the Sri Lankan constitution and uphold its commitment to political settlement, reconciliation and human rights.

“ Welcomes the commitment of the Government of Sri Lanka to a political settlement by taking the necessary constitutional measures, encourages the Government’s efforts to fulfil its commitments on the devolution of political authority, which is integral to reconciliation and the full enjoyment of human rights by all members of its population; and also encourages the Government to ensure that all Provincial Councils are able to operate effectively, in accordance with the thirteenth amendment to the Constitution of Sri Lanka”.

However, the legitimacy of the United Nations to continue to intervene and monitor Sri Lanka is questionable given its ‘systematic failure’ to carry out its own duties and uphold humanitarian interests during the final phase of the Sri Lankan armed conflict. This failure has been admitted by the U.N. Secretary General Ban Ki Moon himself. The Report on Secretary General’s Internal Review Panel on UN Actions in Sri Lanka’, concludes:

“…events in Sri Lanka mark a grave failure of the UN to adequately respond to early warnings and to the evolving situation during the final stages of the conflict and its aftermath, to the detriment of hundreds of thousands of civilians and in contradiction with the principles and responsibilities of the UN. The elements of what was a systemic failure can be distilled into … a UN system that lacked an adequate and shared sense of responsibility for human rights violations; …an incoherent internal UN crisis-management structure which failed to conceive and execute a coherent strategy in response to early warnings and subsequent international human rights and humanitarian law violations against civilians. ..”.

U.N. documents refer to human rights violations by ‘both parties’. However, as the LTTE no longer exists as such, calls for accountability are now directed solely at the Sri Lankan government in power during the last stage of the armed conflict. Accountability is not called for from external groups who provided funds for the terrorist LTTE to acquire weapons to kill thousands of civilians, forcibly conscript Tamil children as rebels and suicide bombers, destroy property and Buddhist sacred sites, so on and so forth. An international investigation which focuses merely on one party –the Sri Lankan government- and on just the final phase of the war, absolves all the other parties to the thirty year war -the LTTE, various Tamil militant groups, previous Sri Lankan governments, the JVP, the IPKF, et.al. – of human rights violations.

Constitutional Reforms

Is the ultimate objective of international pressure, humanitarian justice or coercion of the Sri Lankan government to concede Tamil regional autonomy through the 13th Amendment? Would that bring peace with justice to the beleaguered island given the threats it poses to the rights of the Sinhala majority, the Muslim and other minorities? There is no historical validity to the ‘Tamil Homelands’ concept upheld in the 13th Amendment imposed on Sri Lanka through the Indian intervention in 1987. Contemporary demographic realities and the traditions of multiculturalism and mutual co-existence in Sri Lanka also contradict the need for Tamil separatism. The majority of Tamils in Sri Lanka live in the southern regions of the island outside the disputed ‘Tamil Homeland.’ The claimed regions, especially the Eastern Province is characterized by ethno-religious pluralism rather than Tamil exclusivity. Muslims and Sinhalese population were driven out by the LTTE during the course of the war. Current developments indicate that ethnic cleansing would worsen under Tamil regional autonomy.

Despite these ground realities, the Sri Lankan government is now forging ahead with proposals for comprehensive constitutional reform in response to the Geneva Resolution and the tight timeline set by the United Nations Human Rights Council. In March 2016, the Sri Lankan Parliament adopted a resolution to establish a Constitutional Assembly (comprising all the Members of Parliament sitting as a separate body) to develop a new constitution and go to referendum in 2017. Zeid Ra’ad Al Hussein, United Nations High Commissioner for Human Rights has commended the constitutional reform process saying it has ‘achieved significant momentum’ and would provide “an opportunity to rectify structural deficiencies that contributed to past human rights violations, and reinforce guarantees of non-recurrence …”.

Devolution

The Constitutional Reform Sub-Committee on Centre-Periphery Relations is made up of 11 Members of Parliament drawn from different political parties. It is chaired by a member of the ITAK (Illankai Tamil Arasa Katchu), the Tamil State Party begun by S.J.V. Chelvanayakam, who envisioned federalism as a stepping stone to eventual secession. In the Preface to the recently released draft Report, the Sub- Committee Chairman states: ‘We have rushed through this report due to time constraints’, thereby raising concerns over the wisdom of the sub-Committee’s recommendations on the fundamental issue facing the country.

The draft Report refers to the present unitary character of the constitution as an ‘impediment’ to devolution. Its recommends going beyond the 13th Amendment to transform the governance structures by dismantling the powers of the central government and equipping and empowering each Province to pursue full independence from the Center and from each other. Among the recommendations of the draft Report are exclusive power over land to the Provinces with the Center having to request lands for national projects from the Provinces; fiscal powers to the Provinces including the power to receive foreign direct investment; police powers exercised under independent Provincial police commissions; abolition of the present Concurrent List (on subjects shared between the Center and the Provinces); reduction of the Governor, the representative of the Center to a nominal status..

There is no provision in the draft proposals for retaining the Center’s power to override Provincial statutes with a two third majority vote in Parliament. Without such a provision, each Province would be constitutionally independent and have the freedom to secede from the federal union. This would pose a threat to the sovereignty, unitary character and the territorial integrity of Sri Lanka. It would undermine the Central government’s ability to respond to common threats to the environment and the security of the island as a whole, resulting in conflicts between Provinces over boundaries, waterways, coastline, cultural heritage sites, etc.

Although it is only the Northern region that has been clamoring for separation, the proposed decentralized structure is likely to encourage political elites in other regions also to secede to augment their own powers. It is bound to revive the call for a separate Muslim political entity in the Eastern Province which emerged during the 2002 Norwegian facilitated peace process to establish LTTE control over the north and the east. Similar to developments elsewhere in the world, efforts to enforce regional autonomy along ethnic lines in Sri Lanka could lead to ethnic cleansing and new forms of conflict and violence.

Political fragmentation and destabilization could facilitate greater foreign intervention in Sri Lanka which is strategically located in the heart of the Indian Ocean in a major international trade route. The sea bridge and tunnel planned by India to physically connect northern Sri Lanka with Tamil Nadu, the homeland of 60 million Tamils in India, could provide the basis for realizing the long held Tamil separatist dream of ‘Greater Eelam’. However, it could simultaneously threaten the stability and unity of India itself.

The blood of thousands of ordinary Sinhala and Tamil youth has been spilt over the 13th Amendment, devolution and separatism in recent Sri Lankan history. The Sinhala, Tamil and Muslim elites in Sri Lanka and the Indian and western elites must not let that happen once again. The difficult political situation in Sri Lanka, as in the world, requires honest and balanced perspectives that transcend narrow ethnic and separatist interests. Just policies that protect all communities and the natural environment are urgently needed.

While emphasizing the need to enhance the social status of Muslim women in particular, the Kandy Forum has proposes changes in the areas of minimum age for marriage, consent of the bride, polygamy, mahar and dowry, divorce, maintenance and exclusion of women as administrative officers in the controversial Muslim Marriage and Divorce Act (MMDA).

In a statement signed by Prof. M A Nuhman, Prof. S H Hasbullah, Prof. M A M Sitheeque, M M. Niyas,, Prof. M S M Anes, J MMubarak, Dr. M Z M Nafeel, Dr. A S M Nawfhal, Dr. A L M Mahroof, J M Niwas and U M Fazil said, “It is the Muslim Marriage and Divorce Law that has been mostly contested and it has been admitted that there are anomalies in there to be rectified, particularly provisions that are discriminatory against women, contrary to the Quranic intension of gender equality, but based on age old social practices, disregarding the tremendous social changes the Muslim community has undergone during the last hundred years in Sri Lanka as in many other Muslim countries,” the statement said.

“We think that these changes are vital to enhance the social status of Muslim women in particular and the development of Muslim community in general,” they said in the statement.

The Forum proposed the adoption of a pluralistic approach in revising the MMDA, without restricting to a particular mathab (sect) and to incorporate all the appropriate and progressive aspects of Personal Laws of different mathab in order to give more importance to Quran and Sunna than individual mathab.

We publish below the statement in full:

Muslim Personal Law Reform in Sri Lanka

Proposals by the Kandy Forum

Muslim Personal law reform has become a more controversial issue recently due to the alleged involvement of European Union and the appointment of a Cabinet Sub Committee for review the subject. Muslim Personal Laws which have been in existence for a long time in Sri Lanka has come in for debate from different sections of the community and necessary reforms have been expected for some time. Many attempts made in the past to make reforms were futile, due to a section of the community is against any reform in MMDA as they believe that it is divine and unchangeable, and the Muslim political leadership is also evasive in this important matter.

Constitutional Amendments and Muslim Personal Law Revisions being contemplated at present, and we understand that the committee appointed in 2009 by the then Minister of Justice headed by the former Supreme Court Judge Mr. Saleem Marsoof is about to submit their report. Whilst the Quran and Sunna Perspectives have to necessarily stay intact, the practical provisions made to accommodate the contextual situation at the time need to be examined in detail for possible revisions.

It is the Muslim Marriage and Divorce Law that has been mostly contested and it has been admitted that there are anomalies in there to be rectified, particularly provisions that are discriminatory against women, contrary to the Quranic intension of gender equality, but based on age old social practices, disregarding the tremendous social changes the Muslim community has undergone during the last hundred years in Sri Lanka as in many other Muslim countries.

Given this situation the Kandy Forum has tried to study the MMDA in consultation with some Islamic scholars and look at making recommendations for reform so as to assist those involved in the reform process.

Whilst the Quran and Sunna perspectives have to necessarily stay intact, the practical provisions made to accommodate the contextual and situational adjustments at the time need to be examined in detail for possible revisions, considering the nature of our social mosaic that we live in. We wish to state that the proposed revisions here are within the frame work of sharia as interpreted by several ulamas and Islamic scholars in Sri Lanka and abroad. Sharia has continuously been a subject to various interpretations by different madhabs in the past and various Islamic scholars in the contemporary world as appropriate to their socio-historical context.

The Kandy Forum proposes changes in the following areas of the MMDA, namely (1) minimum age for marriage, (2) consent of the bride, (3) polygamy, (4) mahar and dowry, (5) divorce, (6) maintenance and (7) exclusion of women as administrative officers of MMDA. We think that these changes are vital to enhance the social status of Muslim women in particular and the development of Muslim community in general

1. Minimum age for Marriage

Child marriage is not religious but an age old social practice in different communities all over the world including pre-Islamic Arabia and in the Muslim world that prevails in many countries even in the modern age. According to a UNICEF survey more than 700 million women alive today were married as children. Child marriages are high in some Muslim countries like Afghanistan, Pakistan and Bangladesh. It is considered a social evil that deprives girls of their multi-faceted social developments.

The subject of Child Marriage has come to the focus due to the Request by European Union to ensure Child Marriage Regulations of the Human Rights Commission be adhered to. Islam, the Quran, does not prescribe minimum age for marriage but it prescribes maturity for marriage. Maturity implies not only physical as many think, but also psychological and social where a girl should have sufficient physical and psychological maturity to maintain a family, bear and care children. In the circumstances of the Quran and Sunna being not specific about the Minimum age of Marriage, which is interpreted as a mode to keep it open by Allaah in his wisdom, the contemporary need to specify age limit due to the present complications, the need to safeguard the very young girls being forced by circumstances, monetary or otherwise into marriage had to be balanced with the need to accommodate the small percentage of youngsters who had to get married early for exceptional reasons.

However, according to MMDA minimum age of marriage for a girl is 12 but under the general law it is 18 that is the widely accepted norm. The section 23 of the MMDA says that “a marriage contracted by a Muslim girl who has not attained the age of twelve years shall not be registered under this Act unless the Quazi for the area in which the girl resides has, after such inquiry as he may deem necessary, authorized the registration of the marriage.” According to this provision the marriage of a girl who is below 12 is also valid but not registered unless the Quazi certified it.

In view of the above the Kandy Forum came to a consensus to recommend that

(1) The unconditional age of marriage could be 18 years
(2) The conditional age of marriage to accommodate the request of the person and both parents to be 15-17 years. This concession need to be closely supervised by the Quazis subject to satisfying the Physical, Psychological and Medical Fitness of the Person for the said purpose.

2. Bride’s consent for the marriage

The consent of the bride for a marriage contract is fundamental in Islam. There are ample evidences for that; the prophet himself nullified the marriage without consent of the bride. However, the MMDA does not require the direct consent of the bride, she does not present at the Nikah and does not singe in the marriage register. Only the wali has the authority to act on behalf of the bride. Section 25 (1) (a) of the Act says that:

“for the avoidance of doubt it is hereby declared that no contract of marriage of a woman belonging to the Shaffie sect is valid under the law applicable to that sect , unless –

(a) A person entitled to act as her wali –

is present at the time and place at which the contract is entered into; and

communicate her consent to the contract and his own approval thereof, or

(b) the Quazi has under section 47, authorized the marriage and dispensed with the necessity for the presence and the approval of the wali.”

A number of cases of marriages without consent have been reported by field researchers and there is no provision in the MMDA to find out whether the bride has really consented or not.

In this context, the Kandy Forum wishes to state that a Muslim woman should enjoy equal right as a man enjoy, in determining her personal life and she shouldn’t be a silent party in a crucial contract such as her marriage. Therefore, the MMDA should have provision to get the direct consent or verify the consent of the bride and to get her signature in the contract.

In keeping with the Sunna Traditions it is recommended that Nikaahs must have provision for the free consent of both the persons to be received by signature in the presence of the witnesses.

3. Polygamy

Like child marriages polygamy also an age old practice in different communities all over the world including pre-Islamic Arabia and in the Islamic world. Although Islam, the Quran, did not prohibit the practice of polygamy, it imposes severe restriction on it. It restricts the number of wives a man can have at a time that is limited to four; was very progressive in a social environment where a man enjoyed no restrictions to have any number of wives at a time. And also Quran imposes a condition that he should be able to treat his wives equally and justly and the Quran categorically says that “ you are never be able to be fair and just as between women, if it is your ardent desire (4:129). It is obvious that Quran does not encourage polygamy but its intension is to curb it imposing severe restriction on it in order to abolish it from the society in the future. On this interpretation Tunisia abolished Polygamy and countries like Egypt and Malaysia have imposed severe restrictions on it.

The MMDA does not require the husband to get the consent of the wife/wives to marry another woman and his capability to treat his wives equally. According to the section 24 (1) – (4) of the Act “ a man who wishes to marry 2nd, 3rd or 4th time must give notice of his intention to do so to the Quazi of his area as well as the Quazi of the area where his wife/wives live, and the Quazi of the area where the intended wife resides. Such notice must be exhibited in all the Jumma mosques of the areas and any other prominent places. Without the Quazi’s certificate of the receipt of such notice the marriage shall not be registered.” But the Act does not impose any obligation on the Quazi to find out whether the husband is in fact able to treat all his wives equally and justly.

Polygamy is clearly described in the Holy Quran as being restricted but allowed for those who really need same and very much discouraged by describing the difficulties of the exercise. The Legal provisions of prior notice and other requirements is seen to be practiced very much on the breach and as such our Forum wishes that stringent regulations are formulated to practice the provisions in its totality.

4. Mahr and Dowry ( Siithanam / kaikuli)

In a Muslim marriage mahr is religious obligation and dowry is a social practice. However, in actual practice mahr has become ritualistic and symbolic while dowry has become obligatory in Muslim marriage in many parts of Sri Lanka.

According to the present Act the amount of mahr should be mentioned in the register and it may and may not be paid at the time of the marriage. Kaikuliis mentioned as optional and not obligatory to enter the details of item. (Form No. IV section 18 (2))

Kaikuliis defined by the Act as follows: “kaikuli means any some of money paid, or other movable property given, or any some of money, or other movable property promised to be paid or given, to a bridegroom for the use of the bride, before or at the time of the marriage by a relative of the bride or by any other person.” (Section 97). This section excludes immovable properties like house or land which are usually given as dowry to the bridegroom.

As kaikuli is un-Islamic some people suggest that it should be removed from the Act. Although kaikuli is un-Islamic, it is a widespread social practice that adversely affects women; its entry in the marriage register will help the women to recover it when the marriage terminates by divorce or death of the husband. However recovery of unpaid mahr and the given dowry from the husband is not easy under the Act. Therefore, it should be amended in order to safeguard the divorced women.

5. Divorce

Although divorce is permitted in Islam, it is the least desirable thing in the married life. Prophet Mohammed (Sal) has said that “with Allah, the most detestable of all things permitted is divorce.” However, divorce is an increasing practice in the Muslim community in Sri Lanka due to various factors but mainly because it is comparatively a simple action for a husband.
Two types of divorce are recognized by the MMDA.

Divorce by the husband (thalaq)

According to MMDA (section 27 and the rules 1 – 9 of the second schedule, that stipulates the procedures of thalaq) thalaq is unconditional, that is, the husband need not to give any valid reason for thalaq and need not to proof it. He has only to give notice of his intension to the Quazi of his area. If the reconciliation efforts by the Quazi fail within 30 days the husband shall pronounce thalaq before the Quazi and two witnesses and the thalaq will be granted at the end of 3 months if the repeated efforts by the Quazi for reconciliation fail. For a husband thalaq is a simple process.

Divorce by the wife (Fasah/ Kulah)

MMDA provides provisions for two types of divorce (fasah/kulah) by the wife (see. Section 28 (1) and (2) and the rules 1 – 15 in the third schedule)

Fasah is a type of divorce granted to the wife on her request (without the consent of her husband) on the basis of fault on the part of the husband. The faults may be ill treatments, failure of maintenance, desertion, insanity or impotency etc.

Kulah is a type of divorce granted to the wife (with/without the consent of her husband) if she unhappy with her marriage, although no fault on the part of the husband; and she agree to give compensation to the husband or consideration to the husband in return for her freedom. Although this term kulah is not used in the Act, the section 28 (2) refers to this type of divorce.

But the procedures 1 – 15 stipulated in the third schedule should be strictly followed. The wife has to proof her complaints with evidence supported by not less than 2 witnesses. It is not possible for a wife to get kulah divorce without the consent of the husband.

The general criticism of MMDA on divorce is that it is discriminatory in nature. Men have more freedom to divorce their wives but women have more restrictions.

Family Laws of the Muslim countries like Tunisia, Algeria, Indonesia and Somalia have imposed some restrictions on divorce by men. It is said that the Personal Status Code of Tunisia adopted in 1956 is the most progressive legislation in terms of women’s rights in the Arab world.

Provision needs to be made in the New Amendments to bring all the above types of Divorces including the Right of the wife to request a Divorce without reason and on the Return of the mahr only. Once this is done it will tilt the scales very much more towards the Muslim women in this aspect as is desired by the religion.

6. Maintenance

According to Quran and Sunna the maintenance of a wife and children is an obligatory duty of the husband during the married life and after divorce. Maintenance includes providing food, cloth, shelter and medication etc.

A divorced wife can claim two types of maintenance namely iddath maintenance and Matah

According to MMDA 47(1) (d) a divorced wife can claim maintenance during the period of iddath or if she is pregnant at the time of the registration of the divorce, until she is delivered the child.

The amount is decided by the Quazi according to the means of the husband. It is noted that the maintenance for a short period of iddath is inadequate and it should be extended until the divorced wife remarried.

Matah is a lump sum payment of compensation or consolatory gift which is given to a divorced wife by the husband. However, it is not legally recognized by the MMDA and it is not obligatory for a husband to make a lump sum payment to his wife on divorce. Some Quazis decide it on their own discretion. Some women groups recommended that not only in thalaq divorce but also in fasah divorce the wife should be paid matah compensation.

In some Muslim countries, for example Indonesia, the property acquired during the marriage life is regarded as joint property of both husband and wife and on divorce it is divided according to the Law. There is no provision for this in the MMDA. In this Context the Kandy Forum recommend to revise the relevant section of the MMDA in order to provide sufficient amount of maintenance and compensation to the divorced wife.

7. Administrative Officers of MMDA

To administer Muslim marriage, divorce and maintenance there is a supreme body of The Muslim Marriage and Divorce Advisory Board under the chairmanship of the Registrar general with nominated Muslim members not less than four nor more than nine, Registrars and Special Registrars of Muslim Marriages, Quazis, Temporary Quazis and Special Quazis and the Board of Quazis with five Muslim members

According to MMDA all of these officers should be male Muslims and no Muslim woman can be appointed to these posts. It is obviously discriminatory against women and also against the fundamental principle of equality in Islam. While Muslim women play leading roles in various positions in political, social and judiciary sectors all over the world it is ridiculous to think that they can’t be appointed as Registrars of marriage and Quazis in Sri Lank, while in Muslim countries like Malaysia, Indonesia, Egypt and Palestine, Muslim women occupy the post of Quazis and Judges. According to several Islamic scholars it is not against Sharia. Quran and authentic hadith are not discriminatory against women.

The question of the possibility of Women serving in the different levels of the system of MMDA has been put forward by different sections of society and taking into consideration the success of such exercises in different Muslim countries, the involvement of Muslim Women into service is recommended.

MMDA does not stipulate any minimum educational qualifications to Quazis who carry out similar function of a judge in a civil court. There are a number of complaints against Quazis of their inabilities, partialities and corruptions. Therefore, the qualifications, qualities and the status of Quazis should be enhanced.

There is a final question that has to be addressed. The MMDA specifies that the Sri Lankan Muslims should be governed by the sect (mathab) traditionally they belong to. Mathabsare based on the interpretations of Quran and Sunna by individual Imaams and each mathab differs from the other in various important aspects of Islamic Personal Law. In this context, should the Muslims be governed by the sect (mathab) traditionally they belong to as specified by the MM DA.? Or can they follow Quran and Sunnaof the Prophet with their own rational interpretation appropriate to the modern context?

Kandy Forum wishes to propose to adopt a pluralistic approach in revising the MMDA, without restricting to a particular mathab and to incorporate all the appropriate and progressive aspects of Personal Laws of different mathab in order to give more importance to Quran and Sunna than individual mathab.